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9 



Vol. 1. 



THE AURORA LIBRARY. 

ToPEKA, Kansas, August 1893. 



No. 1. 



PUBLISHED BY THE 

KANSAS BUREAU ^ NEWS COMPANY 

Entered at the Post Office at Topeka, Kansas, as second cla.ss mall matter. 

COPTBIGHT 1893. ALL RIGHTS RK9ERVED . 



THE 



Kansas * l^mzzn * & * News * Eornpany. 

PUBLISHERS OF AND DEALERS IN 



Headquarters for FACTS and FIGURES on ) 
Economic Questions. 



Distril)uting Center for Hews of People's 

Party Politics. Agents for Speakers 

on Reform Sulojects. 



If you arc interested in the great revolution of thought 
and sentiment now convulsing the social and industrial systems 
of civilization, whether a believer or a sceptic, an optimist or a 
pessimist, a friend or an enemy we would like to have corre- 
spondence with you. We are all alike in our desire for the / 
betterment of the conditions surrounding humanity, and by [ 
comparing notes and mixing ideas we will all be helped to a 
clearer and loftier conception of human destiny and the course 
of action best calculated to realize our ideal. 

We shall be pleased to hear from you at any time. 
Address: 

L. L. HOPKINS, Sec'y, 

Topeka, Kansas. 



yv7 




) J 



THE 



bEqi5L/\TIVZG0J^5PIRy\Gy 



IN KANSAS. 



COURT vs CONSTITUTION 



WHO ARE THE ANARCHISTS? 



. BY 

ED. S. WATERBURY, 

Member of the bar at Emporia, Kansas — Clerk of Election Com- 
mittee of the Populist House of Representatives. 



TOPEKA, KANSAS. . 

PUBLISHED BY THE 

KANSAS BUREAU ^ NEWS COMPANY. 
1893. 






■^ 'y '••; (■ ■ /\ . 



Table of Coiatents. 



\ Introduction.' '■■''. \ - '••;'» 

Chapter I. Composition of the .House. 
Chapter II. The Organization, 
CiJAPTER III<, .^T^ip Copspil'a'Qy Pqrmjefl. 
Chapter IV. Open Ruption. 
Chapter V. Decision of the Supreme Court. 
Chapter VI. Our Constitutional Compact. 
Chapter VII. Appeal to Patriotism. 



:I4> . 



Wi;;; 



:l,'fV U 



Ayi A >j;':^!; 



ff^ EXCHANGE 



2tMr'05 



INXRODUCXION. 



•■•'■ •■<^The'Il6publicans should have'tlie credit of standing for 
' law 'Against revolution and anarchy." Rev. Pearse Pinch in 

Neiv'York Vd'ide.' '"'' ' 
'■■"This dry 'of revolution ' and anarchy, raised against the 

Vfece'rit political raovenientfor unity of action among the people, 

iritiBtrates"a great natiohkrheresy and error. ■ 
' '■' ■ '■ N^o ihdi vidual oi- cbltfection of individuals ever believes great 

tVuthg through mere intellectual exercise ;■ they must experience 
"find -f^eT their importance before they really believe them. 
'''When, in tlie experience of people, great triiths aire thus realized, 
■' ahd'a-'great body of' inen unite for the vindication 'of 'thes^ttiiths, 
■'thkt lV6clyis the' only suitiable' agency of the' national progress 

•^liich' those truths al-e'tiesi'ghed toinsplM"''' Every' orgarifeation 
"tAltes its form"^nd chatalcter from 'the' rhoti've^ 'whicht- called' it 
•'iiiWbeihis:; Hnd'the cOi^tinliatioh of that' uhi on- "of men for -the 
•■ sate of ' the ofgaiiizat i oh ' merely ,' and 'after ' th e i'n spiTati6h ' w liich 
'created' it has bfeen e'X^ended, creates dead life.'' This 'is party 

life. The men v(h.6-stvk''7he7hbe7'S of, arid ^6 hdorig to'^^'se 

'j{aVfieb''dssifyinfb'clas?s6s;the most hum'e'i''6ufe'beicbnie the "rul- 
•'iiig '■'class,''' and, 'in this country- of ours ^\>he■^'e 'elates kfe" so 
'loudly deriouiVded, this ruling class' blindly 'beKeves all dppdsi- 
'H\6n to its = ori[jariization'to be anarchistic, revbhitionary and-sub- 
'•V^rsive'of good citizehiBhif)'. These person^ fear conVersiBrf "as 
'they^'car 'annihilatibu: ' Every inspiring revelation 'which -"is 
-bbrh" to the' people" out of new experience' must '"''ehcbdhter-tincl 

bverebme this class opposition or 1;urn- to ashes. The •fej^'W^'fii- 



ating process of death and a new resurrection becomes tlic indis- 
pensible condition of all progress. It ia the terrible realizMtion 
of this destructive influences of cUu>.3es which has yearly weak- 
ened the numbers of independent thinkers and voters in the 
land. There is danger in the situation. Let the people, if we 
have a people, awaken to the danger 

Taking its occasion by the wealcness which has been super- 
induced by this heresy and error, the "Money Power" has this 
year appeared in a new role. It is not the m^th we hoped to 
find it out to l)e. Wt- have seen it. It haa shown itself capable 
of tragedy, and we have been more startled than entertained 
by the unexpected exhil)ition of its versatile powers. The im- 
portance of what has just happened at the capital of Kansas is 
not now generally understood, ever> at home; or if in the deep 
convictions of men it is comprehended, it is not yet openly dis- 
cussed and acknowledged There is practicallv nothing local 
and peculiar to Kansas i« its profound signiticadce. Forces 
common to the wliole counti-y have^ played their respective 
parts. Like conditio*!* invite the repetition of what has been 
demonstrated in Kansas to be capable of success under environ- 
ments like those which exist every where. The powers which 
have been unmasked, and the hidden motives which have thrown 
off their disguise here, are national and general. The issues 
v^hich crystalized on the prairies of Kansas last winter are at 
hand in every section of the whole country. 

The question was that of citizenship under the constitution. 
When the facts of th's struggle are fully and generally known, 
the influence which percipitated it will have nothing further to 
conceal. The policy of delay has served its purpose. Any 
whip-stich of emergency, the turn of any moment, may marshal 
else- where, as well as here, upon a larger and more effective 
scale, the power which last winter at Topeka drew its weapons 
against that sovereignty of the people which is ordained in the 



constitution. Just as sure as that power is not thwarted it 
^inust be encountered, and the time left to prepare for either is 
quite short enough. It is the dignity and virtue of citizenship 
which is in danger of being sullied and degraded. Let the cit- 
izen take thought and bestir himself. 

''Ye have plowed wickedness; ye have reaped iniquity; ye 
have eaten the fruit of lies; because thou didst trust, in thy 
way, in the multitude of thy mighty men. Therefore shall a 
tumult arise among thy people, and all thy fortresses shall be 
spoiled. " — Hosea. 

"Gird yourselves and lament, ye priests, howl, (calamitous- 
ly) ye ministers of the alter; come, lie all night in sackcloth, 
ye ministers of my God. * * Let the priests, the ministers 
of the Lord, weep between the porch and the alter, and let them 
say, Spare thy people, O Lord, nnd give not thy heritage to re- 
proach. * * Then will the Lord be jealous for his land, and 
pity his people." — Jod. 



CHAPTER 1. 



Shortly after the adjournment of the last legislature in this 
state, Rev. Pearse Pinch, pastor of the most wealthy and aristo- 
cratic church in this city, Emporia, had an article in the New- 
York Voice on the "Kansas Legislative muddle," written to es- 
tablish his declaration that "The Republicans should have the 
credit of standing for law against revolution and anarchy." 
This cheap bandiuage, by no means original with the reverend 
gentleman, failed to expand under his treatment to any thing 
more important than a mere postulate; and while 1 failed to see 
that he said any thing of consequence, my respect for the dig- 
nity of the Christian ministry, as well as the belief which I en- 
tertain that the subject is of overshadowmg and almost unspeak- 
able importance to every part of this great nation, has prompted 
me to write about it. I am unable to dispose of the long lesson 
in politics which the Kansas people have learned in the school 
of experience during the past few months as deftly and briefly 
as he did, but, if the reader will grant me a candid hearing 
throughout what I have to say, I will gladly submit to his 
judgment whether his time and patience have been adequately 
compensated. 

The Duke of Marlborough (in JVeiv Revieivi o Jan. 1892, 
London) says ''The squirearchy of America is the legal profes- 
sion." The squirearchy, of course, depends upon the aristoc- 
racy. But have the preachers any advantage over the lawyers? 
Corporation lawyers, like pastors of rich churches, are general- 
ly, very honest, but some of the western people have learned 
that, in matters of politics, they are not the safest guides for 



(5 

those who seek and dare to know the truth. I belong to the- 
legal profession amd claim no credence over the reverend gentle^ 
man . 1 only ask that since a great Kansas preacher has been 
heard, an humble Kansas lawyer may be heard also. 

The Kansas House of Representatives is limited by the' 
Kansas constitution to 125 members, 63 being a quorum. In 
the Republican house (which included all the Democrats opposed 
to co-operation with the People's Party, self styled "Stalwart 
Democrats") there were 64 persons holding certificates. 

One of that 64 is, and since July last has been, a resident 
on an Oklahoma homestead, and attended at the session in To- 
peka under a "leave of absence" granted by the United States 
land oflScers of the territory. 

Four of that 64 were postmasters at the time of the elec- 
tion, who are declared by the constitution of Kansas to be "in- 
eligible to a seat in the legislature." They resigned their post- 
office commissions before the session commenced, and the Re- 
publicans decided that they thereby became eligible (electible) 
after they were elected. Every thing goes. 

One of that 64 had a majority of one returned against h:m 
by the election supervisors, but the county board so falsified 
the returns as to give him a tie, and the state returning board, 
under an unconstitutional statute for decidmg a tie by lot, cast 
the Republican in and gave him a certificate. 

Two of that 64 were defeated in their respective districts 
as those districts were defined by law; but the county boards 
^ave them certificates by counting votes cast outside of the dis- 
tricts, upon the assumption that the district boundaries were not 
what they ought to be, and that the county board could correct 
the legislative error. 

In the case of another of that 64, the county clerk trans- 
posed the names, so as to show the man to be highest who was 
in fact lowest in the number of votes cast for him. In extenu- 



6 

ation of this case it must be admitted that the Republicans ig- 
nored the certificate and admitted the mart who was elected, 
when he agreed to stay in and vote with their house; though the 
other man was kept on hand for an emergency. The aduiitted 
man was a ''Stalwart" Democrat^ 

In four of the above cases, those of the untrue returns, 
the state canvassing hoard having refused to receive evidence 
or corrected returns and issued the false certiticates and ad- 
journed, the siiprouie court, when appealed to, had decided that 
because of its adjournmert the state canvassino; board was le- 
gally dead and could not I o reconvened and compelled to issue 
certiticates according to the true returns. 

In addition to the nine cases mentioned above, five ineliffi- 
bles and four holding certificates by substitution of false for 
true returns, the Populist house, when organized, (upon contests 
and evidence which had been filed in the secretary of state's of- 
fice while the Republicans were yet in oflice) unseated yet four 
other Republicans; one for buying his election by bribino- 
voters, two because of false counts of the ballots cast, and one 
because of illegal votes, and an election judge substituted Re- 
publican tickets for Populist tickets after they were taken out 
of the box and before they were counted. The evidence and 
facts in these cases are published in the journal, and if the con- 
clusions are wrong the reports furnish their own condemnation. 

Allen Thorndike Rice used to publish editorially in the 
North American Review the sickening details of the vulgar 
methods by which the people in certain of the Eastern states 
were defrauded at the ballot box. Rice has been dead several 
years. No reformation of those abuses has been heard of and 
those people seem reconciled to being defrauded. Rice as well 
had held his peace. When the people really do any thing for 
their own protection, platform, pulpit, bench and press stigma- % 

tize them as anarchists and revolutionists. 



"The priests said not Where is the Lord? and they that 
handle the law knew me not; the pastors also transgressed against 
me. * * For from the least of them even unto the greatest 
of them every one is given toco vetonsness; and from the prophet 
even unto the priest every one dealeth falsely. * * The 
prophets prophesy falsely, and the priests bear rule by their 
means; and my people love to have it so; and what will ye do 
in the end thereof. * * Like as ye have forsaken nie, and 
served strange gods in your land, so shall ye serve strangers in 
a land that is not yours.." — Jeremiah. 

American liberty is not an achievement of this generation 
but has come down to us as a priceless inheritance from a form- 
er generation, embodied mainly in our state constitutions; every 
principle has been carried by the issue of war, every sentiment 
has been wrung from the oppression of years, every sentence 
has cost an army, and every syllable has been written in blood. 
While these remain we hold the possibility of supplying every 
treasure that greed may strip from us. When these are gone 
tlie loss is irreparable. We have lost our country. 

In the forms of state government which have Ixjen handed 
down to us, our fathers have sought to pceserve tiie independ- 
ence of the people by preserving the three departments of gov- 
ernment, executive, legislative and Judicial, independent of each 
other; with this advantage to tlie legislative department, that 
(I quote from the Kansas constitution) "Each house shall be 
iudge of the elections, returns and qualifications of its own 
members." These constitutions purposely take away all stand- 
ing room for a mediator between the people and their repre- 
sentatives. They certainly deny all deciding power to a state 
returning board composed of a portion of the oflflcers who con- 
stitute the executive department; and the representatives are 
iudges of the "elections" which are behind the returns. The 
courts are no less certainly excluded. The Supreme Court of 



the United States says (7 How. I); "Whether the members 
are duly chosen or not, whether their acts are accordino- to cer- 
tain parliamentary rules or not, whether they were voted for by 
a majority or not, these and several other questions equally de- 
batable and difficult in their solution are political (not judicial) 
questions. They are too near all the great fundament(il princi- 
ples of government, and are too momentous ever to have been 
entrusted by our zealous fathers to a body of men like judo-es." 
They were left to the judgment, patriotism and sense of justice 
of the people's representatives, because, as tlie Supreme Court 
of Indiana says (109 Ind. 127) "It is often best to entrust.high 
power to officers whose terms are short * * * if that pow- 
er is left. to. the legislature the people can, at short and often re- 
curring iritervals, rebuke where rebuke is needed and approve, 
where a,pproyal is merited." 

.• .,. Ip tbaij^xt chapter we shall behold the wisdom, judgpient; 
and patnolisni \vith which. th9se Kansas Republica,n representa- 
tive$ addressed themselves to the solution of these, great fiinda-. 
mental, important and momentous question^, ;^ ,, ,,. 



CHAPTER II. 



A statute provides that "Upon the day fixed by law for 
<lithe assembling of the legislature, the secretary of state shall 
lay before, the house a list of the members elected thereto in ac- 
cordance wijth^ the returns in his office. " The unbroken custom 
has been for the secretary,. to call the members to order, intro- 
duce a clergyman, and, after, prayer, the members, as the list 
was.i;ead kv the secretary, would , come forward in bloc^§ of 
twen^^-ive and be sworn in, usujilly by a Supreme judga there 
preseftf^ and the ..secretary would cpntinue to preside until the 
teniporarj speater waj^ chosen, when^ he would turn ovei;.. the 

list and retire^ ..lo k; -v ■, ',.:,;;•-..• -tf 

At the time; fixed; by law for the asseinbling of the legisla- 
true^of .1893, Jiinuary. 10th, all persons holding certificates and 
all others claiming to have been eiected were in representative 
hail, when th^ newly instaljed secretary of state went into the 
des£''took up tlie gavel, and' rapped for order and announced 
that he was thpre to perform the dtity required of him by the 
above mentioned statute. Immediately Mr. Douglass (aftej- 
wards Republican speaker) arose, and for himself and fellow 
.Republicans, objected to the secretary's presiding during such 
temporary organization, and insisted that he should leave the 
list and withdraw. Mr. Dunsmore (afterwards Populist speak- 
er) besought the Republicans to allow the secretary to preside 
until it could be seen whether an understanding might be 
reached as to who should participate in organizing the house. 
This overture was rejected, and Douglass still insisting on his 



10 

objection, the secretary said he understood he could not so pre- 
side except by unanimous consent; that when the body had 
some official pert on with whom to leave the list he would re- 
turn and deliver it; whereupon he withdrew, and pandemonium 
ensued. 

What was the first thing to be done? Evidently the house 
must be called to order. But whose duty was it to call it to 
order? If this were an original question, 1 think Rev. Pearse 
Pinch would say that any person whose right to membership ^ 
was wholly unquestioned had the right to call the house to order. 
The existence of such right must be admitted; the duty of the 
others to respect that right necessarily follows. 

In the midst of the utmost confusion, such a member (Sem- 
ple, Populist) went into the desk and, rapping with the ^avel, 
ealled for order, and asked for nominations for temporary 
presiding oflSoer. Immediately a man rushing from the midst 
of the Republicans standing on the floor, ran with all 
his speed to the desk, pulled a mallet from his coat pocket, 
and commenced pounding and calling for nominations, till, 
within the shortest time within which the necessary form- 
ulae of wor4s could be uttered, the Republicans had gone 
through the form of making first a temporary and then a per- 
manent organization and mtroduced a bill. On the subsequent 
trial of the habeas corpus case it was testified that the man who 
so rushed to the desk had been, by the Republicans near him 
on the floor, nominated and elected temporary speaker, but only 
a few of their own number could hear or know of it. All the 
ineligibles and holders of false certificates heretofore mentioned 
participated in, and were necessary to this organization. Some 
one produced a list said to have been certified by the former 
secretary of state, but it was not used and there was never a roll 
call. The negative of no motion was put, every motion being 
declared carried upon the call for afiirmative votes. Ihe officers 



11 

were sworn in by a supreme court commissioner who was erro- 
neously supposed to have authority to administer oaths. The 
entire performance from start to finish was accomplished, so 
Mr. Douglass testified, in perhaps three minutes, and this model 
of deliberative wisdom, statesmanship and patriotism passed 
into history and precedent. 

But the man who had called the House to a temporary or- 
ganization had not yielded to the interruption. He adhered to 
his purpose until Mr. Kyan had been elected temporary chair- 
man, and other temporary officers were chosen, and a commit- 
tee waited on the secretary of state, and that officer appeared 
and delivered the statutory list to Mr. Kyan. The action of 
the Republicans leaving nothing else to be done by the Popu- 
lists, they proceeded to the election of Mr. Dunsmore as per- 
manent speaker, and to the election of the other necessary of- 
ficers of a permanent organization. 

These two bodies having been thus organized, one with a 
constitutional quorum of persons holding certificates, the other 
with a constitutional quorum of persons duly elected upon the 
true returns, and after all the following efforts for union by rec- 
onciliation had been exhausted, who now should decide between 
them? Rev. Pearse Pinch says the courts should decide. He 
is wrong. The Republicans of Kansas and all men every where 
who so hold are wrong. Judges Horton and Johnston of the Su- 
preme Court of Kansas included. 

The legislature consists of three parts, the House, the Sen- 
ate and the Governor. Each of these component parts is bound 
to find the other two and co-operate with them. Who compose 
these three parts must be decided before any legislature exists 
and before any legislative business can be transacted. May a 
court decide in the first intance^ 

There is no case on record where a court has assumed to 
direct which of two bodies claiming to be component parts of 



12 



the legislature should be recognized and co-operated with by 
the other component parts. Judge Horton cites a case in Maine, 
but he does not mention the fact that the Maine court was forced 
to depart from the general rulie by a peculiarity of the Maine 
constitution ; and in that case the decision of the court was in 
favor of the body which had been previously recognized. The 
Supreme Court of Indiana says (109 Ind. 79), "No means are 
provided by our state government by which unity of action be- 
tween the two Houses (Senate and House) can be constrained or 
either House coerced to act against its will." * * * "The 
constitution plamly contemplates a concurrence of action be- 
tween the two Houses in all mooters whicli jpertain to the organ- 
ization of each^ as well as those things which require the joint 
action of both." * * * "No power but that House can de- 
termine the right to membership in that House; and a fortiori^ 
no power but the legislature itself can determine the right of 
its bodies to membership in that department." And the Su- 
preme Court of Georgia says (45 Ga. 402) "It must in the 
nature of things be in the power of a legislative body to de- 
clare, and declare conclusively, who compose it, and whether 
it is properly organized and in session according to the consti- 
tution and laws." 

Four days of waiting passed; the Governor and Senate had 
the lawful right to decide; and in the nature of things they 
MUST decide. They did decide and formally recognize the Pop- 
ulist house and proceed to co-operate with it. The Senate and 
Governor having found a certain body, and having co-operated 
with it as the House for almost the entire legislative session, 
could a court then say that no legislature had existed? Could 
a court overrule the action of the legislative department in de- 
termining upon the membership of one of its component parts? 
In the Georgia case quoted above the court says: "It needed 
no provision to protect the legislature against the scrutiny of 



13 

the courts on this subject. To make it the subject of review 
before the courts, is not only to make all legislation inconclu- 
sive, but to exalt the courts to supreme power in the state." 
In the Indiana case cited above the court says: "There is no 
appeal from what either House may do except to the people 
through the medium of the ballot box." As has already been 
shown, the Supreme Court of the United States has defined the 
question \dnch was decided by Governor Lewelling and the 
Kansas Senate to be, not a judicial, but a political question. 
And again in (137 U. S. 202) that august tribunal says: "The 
determination of such political questions by the legislative and 
executive departments of any government conclusively binds 
the judges, as well as all other officers, citizens and subjects of 
that government." The Supreme Court of New Hampshire 
says, (56 N. H. 577); "If a precedent of interference by one 
department with the discharge of its duties by another be es- 
tablished by the form of a judicial decision, a dangerous blow 
would, in our judgment, be struck at one of the most vital 
principles of our system of government, the consequences of 
which no one could foretell, but which no intelligent and candid 
citizen could fail to see would be lasting and pernicious.'' 

Firmly and rightly, consistently witli the popular majori- 
ty at the election, and by every test of constitution, law and 
precedent, was the Populist organization established as the 
House of the Kansas legislature. Its destruction could be ac- 
complished only by the instrumentality of revolutionary force 
to subjugate the executive and legislative departments, to anni- 
hilate their independence and equality, and elevate the judicial 
department to supreme power. But the maintenance of Re- 
publican supremacy and the interests which that supremacy 
subserves in Kansas required all this — required its destruction. 

It was natural that a necessity so desperate should not be 
entertained at its first presentment. When such purposes have 



14 

been defined in liistory they have received ugly names. The 
cry of anarchist and revolutionist is excellent political clap trap 
with which to brand the other fellow, but the Grand Old Farty 
must hesitate before it assumes the n^le which has no other Ic- 
pritimate definition but that of Revolution and Anarchy, Yet 
time for the contemplation of, and for familiarity with the black 
spectre will soften its hard outlines. "First hate, then endure^ 
then embrace." 



CHAPTER in. 



After llie organization of the two Houses, and the recog- 
nition of the Popnliot house by the Senate and Governor, each 
of them met daily in the same hall; their speakers at first sat 
side by side, and their clerks at either end of the same desk; 
each Hon^e had its own set of pages, door-kefpers &c., each 
acknowledging certain courtesies and prerogatives to the other; 
each House appointed a bare majority on the standing com- 
mittees, leaving a minority of each committee to be made up 
from the other house when it should abandon its organization ; 
Ihey convened at the same hour; they toolc recesses and ad- 
jonrned to the same hour; sometimes, but seldom, the transac- 
tion of business was in full blast in both houses at the same 
time; generally one would work awhile and voluntarily pause 
for the other to work awhile; in matters where a possible ad- 
vantage to either might result, as concerning the occupancy of 
the hall, a Republican, addressing and being recognized by the 
Republican speaker, would move adjournment to a certain hour 
and a Republican would second the motion, then the Republi- 
cans would pause till the same motion had m like manner been 
made and seconded on the Populist side and that side had 
paused, then the Republican speaker would put the motion and 
upon the vote of his side would declare the House adjourned, 
but all would maintain order till the Populist speaker had put 
the motion to his side and declared the House adjourned. After 
a few days mutual confidence so increased that the Republicans 
occupied the hall in the foienoon and the Populists in the after- 



16 

noon. While this was the condition, the Republicans intro- 
duced and had at various stages of advancement 265 bills, 29 
of these they passed, all but three of which afterwards became 
laws; and the Populist house, in conjunction with the Senate, 
was also proceeding with legislation in the regular way. Both 
parties were willing for the time being to maintain the status 
qi(0\ the Republicans, because they believed that upon the pas- 
sage of the first appropriation bill they could, through an in- 
junction against payment by the state treasurer, brought upon 
the relation of any county attorney of tlie state, establish the 
illegality of every act of the legislature as then constituted ; the 
Populists )vere equally confident because they had a quorum 
and majority of members who had been duly elected by the true 
returns, and they expected the Republicans to yield when they 
came to realize that the action of the Senate and Governor was 
lawfully conclusive of the controversy. 

The organization of the Kansas senate was regular and 

..1-: •■ . c?. ....,, .,., •;.■,.;.; .. ,,•; ;:.;.-)i,j i,iti.tM '.ir r . :.°: ••;■.!( V),;: 

lawful beyo.nd all hope of any excuse for the application of the 
"ludicial knife, but in the matter of the election of a .United 
Statga Senator, the Republican senators , displayed a contempt 
for the dignity and authority of that body, of whicK ^hey were , 
themselves members, which would scruple little at the destruc- . 
tion of that authority whenever a plausible excuse for its de- 
struction should present itself. The State senate was composed 
of 40 meinbers, of whom 15 were Republicans, 2 Democrats, 
and 23 Populists. All parties were present at the "Joint As- 
sembly" of the House and Senate, the Lieutenant Governor pre- 
siding, when Judge Martin was elected United States Senator. 
Though a Democrat, Judge Martin had been agreed upon by 
the Populists, not merely because of his deep conviction of the 
justice of the Populist demands, nor yet because nearly every 
Populist member had been supported in the election by that 
kind of Democrats, but particularly in the hope that his candi- 



17 

dacy would draw the three Democrats adhering to the Repub- 
lican house to vote for him in the Joint Assembly, by doing 
which they would recognize the Populist house and so deprive 
the Republican house of its alleged quorum. In this the Pop- 
ulists were disappointed, for only two of the Republican house 
voted for Judge Martin, one a Democrat and the other a Re- 
publican, and both of them afterwards resumed their allegiance 
to the Republican house. All of the rest of the Republican 
house refused to vote. The Journal of that body w'lich after- 
wards became the lower house of the Kansas legislature will 
contain no record of Senator Martin's election. The Repuhli- 
can senators all refused to answer to their names in the Joint 
Assembly. After wards,, the Republican senators met with the 
Republican house, and, with a Senator named. Baker presiding 
and playing the part of. Lieutenant Governor, assumed to be the 
lawful "Joint Assembly" and. claimed to elect J. W. Adv for 
United States Senator. These joint sessions of the Republican 
sena-tors with the Republican house (though never Jiaving a 
quorum of course) were kept up 6very day._for a week, over this 
matter and the election of a state printer,^ (eleptive bj Joint As- 
sembly also) which latter office they never claimed to elect be- 
cause they could not find a man upon .whom they could suffi- 
ciently agree. . , 

But the excitement and asperity incident to the election of 
a United States Senator did not go to the extent of disturbing 
the status quo between the two Houses. Other causes contrib- 
uted to that result which will be briefly considered. 

At the ruptiqn of the amicable relations between the two 
houses, the Populists had passed, or had well under way, very 
liberal appropriations for all state institutions, the railroad bill, 
mortgage redemption bill, and all other measures for which they 
stood pledged by their platforms to the people, and were workmg 
with unrelenting industry in the hope of an early adjournment. 



18 

Hitherto the Republican organization had participated in 
an assumed election of a United States Senator, had introduced 
and passed bills, and professed itself to be the constitutional 
House of Representitives, only needing the authoritative en- 
dorsement of the courts to give efficacy to its actions. But 
difficulties presented themselves. 

Suppose that when the Supreme Court should "find adjudge 
and decree" that the Republican was the only lawful House, 
and that the Populist organization was an urdawful body of 
anarchists and revolutionists, the naughty Governor and Sena- 
tors should fail to see in such decision any authofitativie reason 
for changing their line of action; could the Supreme Court en- 
force its judgment by sending the sheriff with a writ to put 
them in jail for failing to recognize and co-operate with the 
Republican organization ? Safely as the Republicans might ex- 
pect such a decision to be rendered by a Republican court, and 
valuable as such decision would be as a means of besmirching 
the cause of the Populists, and giving moral support to the Re. 
publican cause, what if, braving all this, such decision should 
be treated by the Senate as an intrusion upon its exclusive au- 
thority as a co-ordinate branch of the legislature; what if the 
Governor should hold such deci.-ion to l)e an infringement of 
the independence of the executive department, and therefore 
inconsistent with his constitutional duties? However cheeky, 
wicked ^nd unpretty it might be for the Populist* to act that 
way, what plain, peaceful and lawful remedy for it could the 
Republicans pursue? The proposition that the test of jurisdic- 
tion in a court or body to decide anything is the inherent law- 
ful power to enforce its own decision might embarass the whole 
Republican position, if they depended merely upon a civil law- 
suit to decide the controversy. 

The Populists were fixing to adjourn by joint resolution of 
the Populist house and senate. The constitution declares that 



19 

''Neither house, without the consent of the other, shall adjourn 
for more than two days, Sundays excepted." How could the 
Republican house adjourn? Plainly no legislative act could be 
performed by that house without recognition, and no kind stat- 
ute pointed out the steps to coerce the Senate against its will. 

Might not coercion be effected indirectly by a judicial dec- 
laration that every act of the legislature as then constituted 
would be held invalid, and so compel the Populists to either as- 
sume the responsibility of shutting off all appropriations, and 
supplies to state institutions, and all legislation, unless they 
woidd consent to recognize the Republicans as the lawful House? 
That sword had two edges, for the Populists might say, you 
will take such legislation as we give you, and you decide it in- 
valid at your peril, yourselves assuming the responsibility of 
shutting up the charitable and other institutions, and depriving 
the state of all legislation, by so deciding. By adopting that 
course tne Republicans would have been at the mercy of the 
Populists, and if they had not been themselves hung on the 
gallows which Haaman had built for Mordicai it would be only 
because the Populists were less willing to wreck the public in- 
terest, and were more scrupulous of the welfare of the state 
than they were. 

It had become apparent that the Republican programme 
had been a misconception from the start. They could travel 
no road but the road of submission without producing disaster 
and encountering the obstacles of law and constitution at every 
step. Party prestige might have yielded to a broader patriot- 
ism; personal pride and ambition might have found refuge in a 
nobler duty; but, if you would have a clear eye, you must keep 
a clean conscience; there was money involved in this question 
of Republican submission. 

Up to this time the Populist representatives and senators, 
and all the employees of both Populist houses, had received no 



20 

pay. Not so with the Republicans. On this subject I quote 
from the Topeka State Journal (Republican) of February Gth, 
under the caption ''Who Paj^s the Bills?" 

"Chairman James M. Simpson of the Republican Central 
Committee in his latest circular says he has borrowed money in 
order to pay the expenses of the Republican house. It is not 
known of whom Mr. Simpson borrowed this money. * * 
Although Chairman Simpson has issued his appeal to the Re- 
publicans of the state at large, very few seem to have taken the 
appeal in earnest. * * A few desultory subscriptions have 
been received, but they are a mere drop in the bucket. Mr. 
Simpson's checks heretofore given to members and House em- 
ployees have been promptly honored, and it is perfectly evident 
that he has a bounteous fund to draw on, no matter where he 
gets it." 

The amount of money thus paid could not have been less 
than five hundred dollars per day. The t/o^r/iaZ article, quoted 
above, puts it at a much larger sum. It is sufficient here to 
say that the sum of private money thus used was very consid- 
erable; and the inevitable inference follows that much greater 
private or corporate property interests were seeking the destruc- 
tion of the Populist organization. The public is interested in 
the JonrnaV 8 question, "Who Paid the Bills!" 

It will be remembered that the Populist house and senate 
had passed the Senate railroad bill, which provided for an elec- 
tive commission, to which judicial powers were given, whereby 
the commissioners were enabled to summon any railroad com- 
pany to appear before them, in order to the final determination 
of any objection which such company might have to the sched- 
ule of rates established, (subject only to the right of appeal) by 
which the decision of the commissioners was given the force of 
,a judicial determination of such objection; a railroad law adapt- 
ed to the latest decisions, and -whose every feature had been 



21 

sustained in advance by the highest courts of the land; such a 
raib-oad bill as no Kansas Republican legislative body ever has 
passed, and doubtless none ever will; such a bill as no railroad 
company, with the avarice wdiich now characterizes those corpo- 
rations, would see enacted into lav/ without every possible 
measure of resistance. The remarkable activity of the rail- 
roads, and the exceptional devotion of the railroad service and 
management to the Republican cause in the last campaign will 
be remembered. The connection of eminet railroad men and 
railroad lawyers with the Gunn habeas corpus case sheds a 
light on the question ''Who Paid the Bills!" "Nothing for 
the Dunsmore house" said a railroad general officer, in response 
to the application of Sergeant-at-Arms, Dick, for the usual 
courtesy of a pass over his road to serve some legislative papers ; 
and yet newspapers contemperaneous with the "war" at Topeka 
reported that the passes of the same company were being given 
out by Republican committee men all over the state, by fifties, 
and by car-loads, to run Republicans into Topeka; that it was 
common to see a committee-man pass through the coaches with 
the conductor and point out his men who were not even required 
to show either passes or tickets. And Sergeant General Welch, 
in command of the armed forces in the Republican house, when 
he heard that the Governor would call out the militia, bawled 
through the telephone "Tell Mr. Peck to order out two thous- 
and Santa Fe shop men to defend the Douglass house." It is 
written "The ass knoweth his owner and the ox his. masters 
crib," and it is only necessary to observe the ass to discover who 
the owner is. If the Republicans were bound hand and foot to a 
master who had foughttheirpolitical battles, and "Paid the bills," 
their prompings of duty and patriotism could have but one ex- 
ponent — that master's will. Whether because of these consid- 
erations or not, in the last outcome, it was all the same as if 
the wish of those corporations had been their guiding star, for the 



22 

Kansas railroads could not have desired a different final result. 

From the first of the session a Populist committee had had 
unquestioned exclusive control of a committee room opening 
off' of representative hall. On the 8th of February this com- 
mittee went to its room and found it occupied by a body of 
about 20 Republicans. One of their number took the chair- 
man of the Populist committee aside, and told him that the oc- 
cupants of the room were the Republican Ways and Means com- 
mittee of which he was chairman; that the Republicans had de- 
termined to brings matters to a climax between the two houses, 
and had instructed his committee to take forcible possession of 
that room; that he wished to avoid personally being the occa- 
sion of the first conflict, therefore the first entrance had been 
gained by one of their number climbing over the bannister in 
the Speaker's gallery, and imfastening the spring lock from the 
inside, and letting the others in; that the next time they came 
if they found the door locked, they would be provided with a. 
sledge hammer and would break it down; and he asked the Pop 
ulist chairman to surrender the key so that personally he might 
be saved from the unpleasant responsibility, promising to re- 
store the key so that the Populists could occupy the room wlun 
the Republican committee was not in session. The Populirt 
chairman consented to the request and his committee withdrew. 

During the residue of that week the Republicans inaugu- 
rated steps toward vacating the offices of all members who 
should not acknowledge, and co-operate with, the Republican 
house; they appointed a large number of assistant Sergeants- at- 
Arms. and gave out that another man, to be selected by the 
Democrats, and to whom the Republicans would give their 
united support, should be elected United States Senator. On 
Friday they adjourned until 4 o'clock P. M. of the following 
Monday and went home, having initiated a programme which, 
except for an unexpected action of the Populists, would have 



23 

overthrown the Populist government, reconstructed both branch- 
es of the legislature, imprisoned the Governor and Lieutenant 
Gox^ernor, removed all the Populist State Officers, and advanced 
Creorgc L. Douglass to the functions of Governor of Kansas. 



CHAPTER lY. 



Concurrent!}' with the departure of the Republicans for 
their homes on Friday, February 10th, there begun to arrive in 
Topeka large numbers of people from all parts of the state; 
Democratic senatorial candidates 0}>ened their respective head- 
quarters at the hotels: not only politicians came, but many who 
had never been in Topeka before in any political interest, and 
a noticeable number of strangers appeared from the adjacent 
cities of Kansas City and St. Joseph in Missouri; and when the 
Republican members returned on the next Monday, their bel- 
ligerent constituency came with them, or followed shortly after. 
The crowd of Republican sympathizers which reached Topeka 
by Thursday morning was conservatively estimated at five 
thousand. 

On. Tuesday morning the Republican house passed an elab- 
orate substitute for the measure to vacate the Populist's seats, 
naming the individuals to be removed, and carefully prescrib- 
ing the notice, and every detail of the contemplated procedure, 
and fixing Tuesday February 2 1st, as the day on which the de- 
capitation should be accomplished. Then, having increased their 
force of assistant Sergeants at Arms to an astonishing number, 
and ordered the arrest of Gunn, whose name will figure later 
in this history, they ordered that Rich should be arrested for 
loud reading in the discharge of his duties as chief clerk of the 
Populist house, and so "contemptously" disturbing the Repub- 
lican house, that he be brought to the bar of the House to 
answer for the contempt, and held subject to their further orders. 



' 25 

' Aliliongh Ricli had done nothing more "tlhan the others, iio l^op- 

' lilist had been lampooned by thfe Republican press as he' had 

"'been;' he was the ''instigator of all villianios, the arch cohspira- 

'tor, the chief anarchist," and they eelected the victind lipon 

Whom 't'hcy coard ' inflict the utmost to exiiisperate the Populists, 

and' still be safe in the public opinion wliich they had built up 

concerning him, • 

Rich wfiV arrested at dinner, 'after, which tliey started with 
him toward the 'state house; but instead of going there, they at- 
tempted to take him to the Copeland hotel, which was Renubli- 
• can headquarters (the doughty Sergeants interpreting too literal- 
"■" ly their "writ to"take him ""to the bar of tlie Houie'^ j but Itich 
objected, his frieijds interfered, a tight ensued, "and Rich As^as 
rescued. 

''• VV^V '''■•■ A' ■• ''^ :,n:(;. i- . ■ . i ... ■ ■ ■ ■ - ;/;:;.-.• r ;; i .' ", 

Ihen the Governor (and also Spea,l^er Dunsmore) called upon 

"'Sheriff Wilkerson of Shawnee county td talve the necessary 

measures to preserve peace and, order at the capitol, which that 

■ '•11,1 .i.'.O- a • ••*.;•.■; : ^.■....■. -''^.i,. ; ; .. i-i\r<i-\^ :.\i/v • . ••, 

, 'lunctionary, in ternis more emphatic, than amiable, refused" to 

do. . That night Representative hall remained in charge of s,ome 

fifteen or twenty Sergeants* at Arms, wlio.,had.been appointed 

by the Populist house and instructed to keep out all Republi- 

, can employees (not members.), and "the doors. and stairs were 

».' .VfCt'OO.-v ;'•..-.*' :i;f i ,V.' , i.';(i •;;■.!; '..;.-'•■ ..!i|.-.' ^- ;.(;«■}-; -i?->(; . :.: ,;•, .; ; . :',: 

"•uft'rded for that purpose. 

.• ^ :>xi<'. r ■.^.. :< ^ ii.\-r-'i ■> •v ■••:• ;^l: : m .i!f-,fii'» : 'f. ;;.:.,;;;' \-i 

At 9 o'clock Wednesday mornins; the "Republican menlpers 

JK>«iK«.iiu' ;;-(.;.'.- •■.:!.; »i .••■.!.: i.T.!*? .;;.:.; -S ..v. I'/.-fu- :• r .7V. ■:.!.•;(•!; 

%i'|h some of their employees, 100 in all, iornied"at the Cope- 

.■:<<.(-.M (l:>i ■■• .'■ • '.. II- . • :.^.' '^ i.;lj.r .*».! .:i .■..•i.i M Ot ;.•(;•'. .i ■.:. 

hind hotel and marched to the capitol, they, forced away the 

, Populist Sergeants, sledge hammered through the doors, en- 

tered, and commenced the form of lecrislatiye busines.^. Short- 

. : ..■«,:: <■.;•• . .-• . ^■.' .;..' ..;;ii,' ii..' ...■ ' •■ ' '■ :.; P' ; v^>■(>4 ..i : i . •. ..:.; -.;. 

Iv afterwards, another procession of about 100 Republican as- 
sistant Sergeants formed at the Copeland and marched into Rep- 
resentative hall. They eiected the clerks, and attachees of the 
Populist house who happened to be there^ in some cases forci- 
bly ; they telephoned to the officials of the Santa Fe railroad to 



26 

order out two thousand men from the work shops to defend 
thetn; they hung out a huge flag at the rear end of tlie state 
hoiise over Representative hall: and closed and guarded the 
doors and assumed exclusive control. Then they issued an "Ad- 
dress," proclaiming the existence of an organized conspiracy to 
overthrow their's the lawful house, accusing the Governor of 
conniving at the flagrant assault upon their Sergeants in the 
rescue of Rich, reciting their awful perils in gaining access to 
the hall, that they "Were hourly threatened with the forces of 
Anarchy and Revolution, who openly proclaimed m. advance 
tlieir determination to disregard the judgynent of tlie courts,''* 
and calling for the instant moral and active support of all law 
abiding citizens. 

And the Governor ordered out the militia. 

Two provisional companies of some 20 men each wore re- 
cruited, a company of 20 came in from one of the suburbs, and 
late in the day a section of Topeka artillerymen appeared; 
oth:rs came during the night but not in season for that day's 
proceedings. The militia was placed under command of Col. 
Hughes and he was ordered to go to Representative hall, where 
a lawless body of armed men, co-operating with certain mem- 
bers of the legislature, were in forcible possession, and eject 
therefrom all persons except the members and those recognized 
by Speaker Dunsmore as the employees of the House. A 
threatening crowd at the front entrance of the capitol engaged 
the attention of the militia, and Hughes did not reach Repre- 
sentative hjilLtJiLneajt^-alGlWc; - Tlien he' made a speech to them, 
told tliem of the order which he had received, and stated that 
he should not obey it, assured them that they should not be 
molested, said he expected to be relieved and when he went his 
regiment would go with him. 

A portion of the militia which had been called ont, when 
they arrived at Topeka, instead of reporting at the state house 



27 

reported at the court lionse and were sworn in as deputies under 
Sheriff Wilkerson, who had commenced to recruit a force imder 
the call of the Kepubiican house. Wilkerson 's organized force, 
it was said, reached 32 companies of 30 men each. Their visi- 
ble arms were ball-bats and clubs, and they wore badge« of red 
in their button holes. The Sergeants at Arms carried Win- 
chesters and revolvers, and wore belts tilled with cartridges. 
Between 600 and 700 of these Sergeants at Arms received pay 
for three days service each. The unorganized, hooting, jeering, 
menacing crowds were by no means an unimportant factor of 
the situation. Two or three more companies of militia from 
interior towns came in who did not go over to the opposition, 
and the pretense of a line of soldiers around the capitol was 
maintained; but it is doubtful whether the Governor had a hun- 
dred armed men upon whom he could rely in a real emei-gency. 
During Thursday (16th) the guard lines were repeatedly forced, 
and in some cases, as in the instance of D. K. Anthony's ex- 
ploit, with the most brazen and taunting defiance. Company 
(t 2nd Regiment, of Marion, quartered and messed with the 
Republicans in Kepresentative hall on Thursday night, and that 
evening the Governor negotiated with Sheriff Wilkerson for a 
truce during the darkness of the night. The following incident 
of the next morning was reported in the daily papers: 

"About sixty deputy sheriffs made a successful rush upon 
the guard line in front of the state house at 9:30 this morning, 
* * the sherifis formed a phalanx and forced the guard back 
and Avent up to the House, hooting and yelling like a pack of 
hoodlums. * * Dr. Patee, who was acting as assistant Ad- 
jutant in charge of the guard, was quite seriously bruised and 
pounded. lie was struck on the head with a cane, and after- 
wards with the butt of a revolver. * * The blow with the 
rev(>lver cut a gash in the top of his head which bled profusely. " 

The position of the Governor and his friends was hourly 



28 

becoming more untenable. The defiant attitude of the Repub- 
lican thrcifjg had given place to an impatient eagerness for ag- 
gressive action on their side. Since the abandonment of the 
Governor by the militia, all thought of clearing Representative 
hall had been overshadowed by the uncertainty as to what would 
happen next. It was certain the Governor could not live long 
enough to assemble his political adherents from the rural dis- 
tricts of the state. Only the excuse of Republican bloodshed 
was needed to end his career as Governor, and there were men 
hicrh in Republican councils diligently seeking to provoke the 
occasion and create the excuse. Whether or not the Republi- 
can manao-ers were complacently planning that their forces 
should assassinate the governor, if the natural and probable 
consequences of the acts of those managers had not been inter- 
cepted, let the reader consider the following language in a let- 
ter, addressed to the Governor, and published in the principal 
Republican paper in the state [Cajyltal Feb. 26th) in which the 
chief editor ironically said: '-You no doubt owe your present 
good health to the fact that the state escaped a fatal collision , 
between the deputy sheriffs and vour forces. * *' It is a' 
source of conffratulatiou that Chaplain Biddison's prayer for 
your protection against assassination reached the throne of grace 
so promptly." , , 

But the nature of the interception, or the agency chosen to 
answer Chaplam Biddison's prayer, formed a ver}^ forcible com- 
ment on the actions of these Republican leaders. The charaqter 
of the crowd brought to Topeka for the ]>urpose of "upholding 
law and order" filled all respectable citizens there with a feel- 
ing of great uneasiness. They could see in the drunken reel- 
ino-s and brutal features, dire forebodings of riot and pillage 
should the impending clash come. They could see that the 
city would be looted and perhaps burned to the ground by these 
deputies from the .criniinal population of the Missouri river 



29 

towns. They trembled at the fearful results sure to follow if 
this mob M^ere turned loose to prey upon the property m the 
city. And they knew that a clash of arms at the capitol would 
be the signal for riot and their property and perhaps their lives 
would be the boot}'- to be claimed by this lawless horde. To be 
sure the majority of them sympatliized with the Kepnbliean 
house and hoped for the success of the Republican conspiracy 
to prevent legislation, but their own danger opened their eyes 
to the infamy of the plan (o accomplish by bloodshed what they 
had failed to secure by ballot. As a result of this feeling a citi- 
zen's committee, composed of the most prominent Republicans 
of Topeka, went to the capitol and besought the Republicans 
to eifect some sort of compromise that would prevent a resort 
to armed violence. This introduced a new element into the 
Republican position. Here were the men and here the element 
of society npon which they must rely to connect their schemes 
Avith any degree of public respectability, threatening to leave them 
to go it alone unless they amended their program of revolution. 
As a result a committee of three was appointed to meet the 
Governor and arrange for a return to the conditions preceding 
the arrest of Rich. The Populists had all the time been anxious 
to avoid any kind of violence and had hoped that they could get 
through with their work and go home, so it was a very easy 
matter to arrange the details of an agreement forced upon the 
Republican managers by the respectable element of their own 
party. The proposition agreed upon after being submitted by 
the Governor to the Populist Senators in caucus, who approved 
it unanimously, was finally adopted and signed by the Governor 
and the three representatives of the Republican house. 

By the terms of this agreement the militia and deputy 
sheriffs were to be discharged; each House was to continue its 
work without interruption; the Republicans were to occupy 
Representative Hall and the Populists were to continue their 



30 

meetings in the south corridor; and no provision in the agree- 
ment was to be used in any legal proceeding as a recognition 
by either House of the other as the legal House of Representa- 
tives. 

The revolutionary conspiracy of the Republican leaders di- 
vided the respectable members of their own party from the ad- 
vocates of brute force. But as will be seen, the plans of the 
revolutionary element in the party were only deferred for a 
more matured public sentiment and a more convenient season. 

A week of precious time had been lost to the Populists. 
They had kept tlie continuity of their daily sessions by meeting 
in an unenclosed area in the south basement of the unfinished 
central portion of the capitol building. Their future purpose 
was quickly formed. They would make this south basement 
their Representative hall; and they went to work, sitting on 
chairs and benches which had been brought in, while the car- 
penters sawed out and nailed up desks for them, and a platform 
for their speaker and clerks, and enclosed them with wooden 
partitions. But it was Tuesday, the 21st of February (the very 
day on which they had been notified that their offices would be 
vacated) before the carpenters were out of the way and any 
orderly progress of business could be resumed. But for the 
interruption they would have been at their homes. Xow they 
were a full week behind; and every day and every night they 
were in session, in the innocent hope that very soon the Senate 
and House would concurrently adjourn, and then there would 
be no more legislature in Topeka to be insulted and bulldozed. 
If the Republican party should attempt to nulefy their acts by 
means of a judicial decision or otherwise, it would not only be 
unlawful, but it would be under a weight of responsibility wdiich 
would be simply unbearable either by that or any other party. 

On the same day that Rich was arrested, February 14th, 
L. C. Gunn, living at Parsons, some lAO miles from Topeka, 



31 

was also arrested, on an order made by the Republican house 
at its session whicli commenced at 4 P. M. the previous day. 
The Republican newspapers announced "Another Populist ar- 
rested — they will try to release liira by haheas corpus.''' But 
Gnnn had no sooner reached Topeka than the President of the 
First National Bank, at the request of Ex-President H. C. 
Cross of the M. K. and T. raih-oad, both prominent Republi- 
cans, volunteered to become Gunn's security for his appearance 
before the Supreme Court at a future day, m which court a writ 
oi habeas corpus was at once sued out in Gunn's name, such se- 
curity was given, and Gunn went liomo. 

The Governor had no formal notice of the case. The first 
knowledge of it came to him, as to other citizens, through the 
newspapers. He conceived that it might bfecome of public con- 
cern, and he requested the Attorney General to appear in the 
case in the interest of the public, and that officer did so. Mr: 
Doster and Mr. Clemens assisted the Attorney General . The 
fact of the presence of the Attorney General in the case under 
these circumstances could not at all enlarge the powers of the 
court, and it is not so claimed or pretended. Gunn was repre- 
sented by Eugene Hagan, Esq. The Sergeant at Arms of the 
Douglass house, who had served the wariaiit on Gunn, was the 
respondent, and he Avas represented by three lawyers whose se- 
lection for eminence, ability, and influence could not be im- 
proved upon in the estimation of the Republicans. The legis- 
lature of Kansas was no parfy to the proceedings, neither was 
any summons, notice, or warning of any description served upon 
the legislature or either House of it, nor upon any of their of- 
ficers. The executive and legislative departments, and all the 
officers thereof, were entitled to that protection from the col- 
lateral effects of the judgment to be rendered which the law al-, 
ways extends to the humblest Justice of the Peace or Constable 
in the state. 



32 

Although the statute provides that the person to whom the 
writ of habeas corpus is directed shall make innmediate return, 
and the court shall summarily hear and determine the case, the 
case was put off six days (to Feb. 21st) before the trial was 
commenced. 

The court announced at the outset that it would not enter- 
tain objections to evidence, except in the closing arguments, 
but would hear all evidence offered by either side. During the 
trial, Mr. Doster asked whether evidence would be heard touch- 
ing the ineligibility of certain members of the Douglass house, 
and their right to membership upon the election returns; but 
the court refused such evidence. An incident occurred during 
the trial which became significant in the light of subsequent 
events. Mr. Clemens had objected that certain evidence offered 
by the Republicans was going beyond the proper range of in- 
quiry, when the Chief Justice sternly called upon Mr. Clemens 
to be in order and to be obedient, and added "The court ia 
amply able to enforce its own decisions." There was evident- 
ly in the mind of the Chief Justice a well defined method by 
•which the decision of the court, although in a case in which the 
•other departments of state claimed it had no jurisdiction, should 
be enforced. Along certain lines the evidence took the widest 
xansfe; all that was said and done, and the incidents of the or- 
ganization of the two Houses, their journals, roll calls, the reg- 
ularity of their actions, and all matters supposed to relate to 
the validity of their respective organizations. The decision of 
the court was orally rendered by Chief Justice Horton on Sat- 
urday the 25th of February, and occupied over two hours in 
its delivery. Judge Johnston concurred, and Judge Allen ren- 
dered a dissenting opinion. The decision of the court denied 
all validity of the Dunsmore organization, and declared the 
Douglass house to be the lawful and constitutional House of 
Representatives of Kansas, and ordered that Gunn be held to 



H 
ty 

a> 

n 

o 






^ SB 
ft) '5 



o 

13 



iX> 




33 

answer before that House for his disobedience of its subpoena. 
Since this decision has received practical obedience, and 
no officer or citizen within the state is arrayed against its en- 
forcement, it is now the legitimate subject of criticism. Any 
member, however humble, of that great profession which in a 
free government must always be honorable, (and only dishonor- 
able in degree as public liberty is lost) and any, whether lawyer 
or layman, who can pierce the problem, may render a tervice to 
the cause of truth more important than a great judge in high 
office has rendered to the cause of government. Surely profes- 
sional subtlety is not needed to discover such absurdities as this 
decision exhibits in its practical effects, as that; The same court 
w^hich had declared it had no power to keep fraud out of a leg- 
islative organization should now declare that a legislature has 
no power to keep fraud out of its own organization; Though 
the constitution forbids a non-resident to be a member of the 
legislature, yet a citizen of Oklahoma may participate in the 
organization of the legislature; That a certificate of election in 
the hands of a man who '\% foiljidden to he elected by the con- 
stitution shall ho. 2^Tima facie proof of his right to membership; 
That the constitutional power of a body to decide upon its own 
membership does not include the right to pass upon the quali- 
fications of the persons who shall organize the body; That a 
certificate of election has greater prima facie force than origin- 
al election returns; That a court (each House) which has the 
exclusive and final power to decide shall be controlled by the 
dictates of another court as to what effect shall be given to the 
evidence; That the executive department (state returning board) 
of one administration may fix the political character of the leg- 
islative department of the next administration; That there is no 
remedy in our system of government against fraud in a state 
returning board until that fraud has accomj)lished its purpose. 
You want the courts to be supreme in matters political as well 



34 

as matters judicial, but in this folly yon have misused yonr aim, 
for you have established the superiority of the state returning 
board above the power of the Supreme Court. The functions 
of the returning board are exclusive, it is presumed that officers 
will do their duty, and their frauds cannot be anticipated and 
redressed before they are committed; as soon as committed the 
board is legally dead, and it cannot be forced to correct its own 
wrongs, and no other power can correct them. The court, which 
a few weeks before had not power to revive a dead Republican 
returning board to redress wrongs, now has power to kill a live 
Populist legislature which has suppressed the wrongs. Your 
decision discloses no way of correcting the fraud because that is 
the very thing it started in not to do. You come back to the 
wise saio that "a certificate of election is jyrima facie valid and 
must be respected till the House is organized — then the House 
can unseat upon due contests," but the evil is wrought in or- 
ganizing the House. If you candidly read the authorities cited 
by Judge Horton you will iind never a case in which a court 
has said that a legislative body must give jjrima facie authority 
to a certificate of election; and if you search farther you will 
find plenty of cases where the courts have refused to do so. You 
ask then who shall form the organization? Shall it be settled 
by the muscle of the strongest party? The authorities tell us 
that it is left to the wisdom, patriotism, and sense of justice of 
the representatives whom the people have sent there. It must 
be confessed that the Fathers of the Republic were very silly if 
they had in contemplation such 'v/isdom, patriotism and justice 
as the Republicans exhibited when they organized the Douglass 
house. 

But farther criticism of the soundness of the decision of the 
Supreme Court in the Gunn habeas corpus case is aside from 
the precise purpose for which these chapters are written. 

Every paragraph thus far furnishes the most cogent, sub- 



35 

stantial and irrefutable demonstration of the plain and simple 
duty of the Senate and Populist house. The fact that the Su- 
preme Court without jurisdiction, and without any lawful means 
of enforcing its judgment, had pronounced against the validity 
of the legislative organization, while it might obscure, could 
only make that duty more emphatic and imperative. The leg- 
islative department of the state should assert its constitutional 
independence of the judicial department; should ignore the de- 
cision, finish its work of legislation and adjourn. To fail in 
that duty would show that the People's Party was inadequate to 
the emergencies of office, incapable of administering govern- 
ment, an unfit guardian of the rights and liberties of the people 
which should never again be trusted with public power and 
authojity. 

"Why did they not perform that duty? Why were they 
wanting at the moment of supreme necessity? IIow could they 
justify their submission without confessing that the Repub- 
licans were right? Why did tiiey fail m this vital, critical and 
decisive exigency? Kansas will say to the People's Party, An- 
swer these questions or thou shalt die. Never fear for the Peo- 
ple's Party, reader. Would to God no worse result than the de- 
struction of ihe Peoples Party might follow the performance at 
Topeka during last winter. 

On the Mondav evening next following the week of '-war" 
in Topeka, being February 20th, the day before the trial of the 
Gunn haheas corpus case was entered upon, the Daily Press 
(Democratic) contained the following: 

"It was stated today, on authority that would ordinarily 
be considered reliable, that the Republicans have arranged for 
about 40,000 men who could be gotton to the capital on twelve 
hours notice, in the event of another outbreak. From the same 
source comes the inforniation also that the Republicans have 
made their plans for a provisional form of government in order 



36 

to carry their point. The scheme as given out is to take pos- 
eession of all the state ofiices and the state house, and then call 
another election to settle issues involved. It can be readily 
seen that this plan of action would give the Republicans the 
power to name election officers, which would concede to them 
the machinery." 

Knowing nothing of the matter, the Populist legislator, at 
the time, could only read the above quoted article with a shrug 
of incredulity. The scheme was too stupenduous to be com- 
prehended, and too vicious to be credited. It therefore received 
but little thought and arrested no general attention. Slow and 
unwilling as all must be to give ear. and terrible as the enter- 
tainment of such a purpose may be thought to be, a series of 
facts and circumstances bearing on this maiter has since de- 
veloped; they underlie the action of the Populist legislature in 
surrendering to the Douglass house; they are of the most in- 
tense public interest, and I shall therefore endeavor to set them 
in order in the next chapter, leaving the reader free to sneer, if 
haply he may, at ihe frantic words of a partisan alarmist, or 
tremble, if he must, at the conditions by which he is surrounded. 



CHAPTER V. 



I have readied a point in the course of this review where 
I am sure of Republican readers. The manipulation of the 
ward heeler and the local committeeman, the castif^ations of the 
editorial fr}^ and the bigotry of small thought and political 
prejudice cannot leave me to empty benclies. The people 
must beai-, in their persons and property, the results of these 
political convulsions, whether they be blessings or curses; and 
when the people arouse themselves and demand to know what 
is coming, the magnitude of the consequences will compel a 
candid hearing. 

1 have a Republican audience. Gentlemen, I greet you. 
By eveiy test of patriotism, lineage and record i am as good a 
Republican as the best of you. In birth I am only one gener- 
ation removed fiom a Revolutionary soldier; my father was a 
great abolition leader; 1 was a Union soldier in the sixties; I 
cast one of the Twelve electoral votes of my state for President 
Grant, and I w^as a Republican of the Republicans till 1890, 
when I found a better Republicanism outside of the party. 
And in 1894, if the present Populist state gov-ernment shall 
follow your lead, assert and act upon the princijdes which you 
have established by decision and precedent, and do as jou did 
during the last Republican state administration, I shall look for 
you even to take up arms, if necessary, to destroy your own 
political off-spring, and to demolish what yourselves have created; 
and, if so, you may look for me with a Winchester at my 
shoulder and a cartridge belt about my body standing in the 



38 

ranks of those who will not suffer the laws to be prostituted to 
the exigencies of parties, and to the end that we may together 
maintain inviolate the constitutional prerogatives of the people 
which were purchased by the blood of our Revolutionary sires. 

You must acknowledge that if you were wrong and we 
right, you have yourselves furnished the lawful precedent for 
repeating the wrong which you did without law and without 
precedent. Therefore whether you were wrong or whether we 
were wrong is a matter of moment to the people so grave that 
they dare not suffer party considerations to enter into their 
verdict: for by the eternal laws of God and human rectitude, 
that verdict must be right. 

I am embarassed by the fear that I compromise myself by 
citing; proof of that which Republicans most desire should be 
proved, and shall miss my thanks for doing them a great service, 
Thete is a dash, and at least physical courage, in the attitude 
of the revolutionist, which must command a degree of admira- 
tion and respect, either secret or expressed, and when it is 
backed by moral courage in a great and good cause, it becomes 
an ever brightening diadem of honor on the brow of exemplary 
humanity. But that kind of courage when it gets its belt and 
gun on does not go and strike a tragic attitude to have its 
picture taken; and the cause of the revolutionist is tainted with 
moral cowardice when he conceals and denies the real character 
of his purpose and action. But with whatever result, let us see 
what, if anything, in the action of the Republicans at Topeka 
last winter portended revolution. 

Before the arrest of Rich, a legislative appropriation bijl 
had passed the Populist house and senate, had been signed by 
the Governor, and published in the official state paper, Topeka 
Capi-tal, and had become a law. Upon the relation of the 
county attorney of Shawnee county, an injunction against the 
state treasurer and auditor had been sued out before the Repub- 



39 

lican judge of that judicial district to prevent tlicm from paying 
out money under this appropriation, up jn the ground that the 
legislature which passed the bill was not duly organized; and 
before the decision in the Gunn case, the district court had so 
decided by granting the injunction. 

Judicial investigation in all cases, is supposed to be 
limited by the injury complained of and' the remedy adminis- 
tered. It would have been quite proper for Judge Horton to 
have entertained all the opinions of law and fact which he ex- 
pressed in the Gunn case; he coifld. have decided, as he did 
decide, that the Douglass house was properly organized, and 
entitled to recognition, and had the right to transact certain 
business, and to defend itself, and might issue subpoenaes, and 
punish for contempt, before itobtained recognition. He might 
even have gone farther, and said that the Populist house was 
not lawfully organized, and that the decision of the Governor 
and senate in recognizing it did not make it a lawful part of 
the legislature. This surely would have disposed of all there 
was in the Gunn case; it would also have left the question to 
be decided whether the acts of the legislature as then con- 
stituted should be enforced as the acts of a de facto legislature 
when that question should be properly raised in a proper case. 

It is impossible, and every day's experience in public affairs, 
and all history a thousand times proves it to be impossible to 
keep the macliinery of government and of the administration 
of justice in motion without the recognition oide facto, officers, 
functionaries, and bodies, both high and low; and in the case 
before us there was no other door of escape, lawfid or otherwise, 
whereby the state and its people could be saved from the awful 
tragedy of blocking the' wheels of government, in the event 
that the two Houses should not finally agree. Please under- 
stand this. The legality of this ^^de facto''' rule is always and 
every where admitted. If the Douglass house had abandoned 



* 40 



its orcranization and gone into the Dansraore house, and the 
latter, co-operating with the Senate, had passed the necessary 
laws to keep the state government in motion, Judge Horton 
himself would have said — The government shall not stop; that 
was a de facto legislature; notwithstanding tlic pretended jour- 
nal of the Dunsmore -organization was no lawful journal, in 
legal contemplation that house had never been organized ; the 
members shown by the journal to be present were not legally 
present, and their presence, was necessary to a lawful organiza- 
tion; Mr. Dunsmore had never been legally elected and was not 
a lawful speaker; neither had that house any lawful officers; all 
these defects which, according to the Gunn decision, existed in 
the Dunsmore house would not have deterred Judge Horton 
from enforcing the acts of the legislature as a deficto legisla- 
ture; and the same would have been true if the Douglass house, 
instead of going in with the Dunsmore house, had simply ad- 
journed, for the Dunsmore house would still have retained its 
69 members, thus answering the demands of the constitution 
as to quorum. 

But every intendment of that Gunn decision was to declare 
that, without waiting to know the circumstances, and under any 
and every circumstance, the court would hold every act of that 
legislature, as then constituted, to be invalid. 1 do not wish to 
be understood that the court excluded all possibility of its en- 
forcing de facto legislation. But the meaning of the decision 
to be understood is that the court would never regard the ex- 
istino- legislature as a de facto legislature. 

I quote two extracts from the Gunn decision: 
"The Douglass house was not only legally organized, but 
its journal shows that it lias been doing, or attempting to do, 
business every day of its session. It has challenged the right- 
fulness of the Dunsmore house; it has challenged the action of the 
Governor and Senate, and the very first act of legislation has 



41 

been made the subject of an injunction in the District Court of 
Shawnee county, whose judgment until reversed is as valid and 
binding as the supreme edict of the Supreme Court of Kansas." 

The following is the concluding paragraph of the decision 
as published: 

"It has been sugn;este(l that Ave should hesitate to give an 
opinion upon the constitutionality of either of these bodies be- 
cause unpleasant complications might arise therefrom. It has 
been snoo-ested that the Governor and the Senate will not find 
their way clear to act with the legal house, and, therefore, the 
appropriations may fail, and all of the departments of the gov- 
ernment will be without funds; and more unfortunate still, that 
the educational, charitable and criminal institutions will be 
closed. We tmst that such will not be the result. We believe 
that the Governor is honest and patriotic; we believe that the 
Senate and the members of both these contending bodies are 
honest and actuated by worthy motives. We trust that there 
may be some way by which the House and the Senate and the 
Governor can act together unitedly and harmoniously. The 
questions involved in this case are above party and partisanship. 
They concern the people, the state. The gravity of the situa- 
tion we fully understand. Certainly no constitutional or public 
question can be more solemn than the one now before us. 
While we deplore the occasion which compels us to hear and 
determine this case, we feel constrained by the imperative com- 
mand of the constitution, and by the conscientious discharge of 
our duties, to declare our views irrespective of policy and irre- 
spective of expediency." 

The naked meaning of the first of the above quotations is 
that, since the constitution provides that "No money shall be 
drawn from the treasury except in pursuance of a specific ap- 
propriation, and no appropriation shall be made for a longer 
term than two years," the appropriations made by the legisla- 



42 

ture of two years ago having expired, now, therefore, the door 
of the treasury vault is locked against the payment of another 
cent, and the key is in the judicial pocket, and shall there re- 
main until there shall be a legislature which will pass muster 
before the courts to make further appropriations. 

In the other quoted paragraph the appeal which is made to 
the patriotism and honesty of the Governor, the Senators and 
the members, and the trust which the court expresses that they 
may find a way to act together united and harmonious is, by in- 
ference, a confession of the court that it has no grant of power 
to coerce the Governor and Senate and compel such harmonious 
action; in the absence of which harmonious action it is hy im- 
plication declaimed that the tvheels of government 8! lallhe hlocked. 

A judicial decision which has no alternative but obedience 
or revolution is no judicial decision at all within the contem- 
plation of constitutional government. It is nothing but a po- 
litical ultimatum. Harmony of action, says the court, is the 
only peaceful remedy possible, but that harmony of action 
must be xifoii th!b basis of the Douglass organization — a harmo- 
ny which is not harmony at all. The court appeals to patriot- 
ism of a broader type than itself has exhibited. It does not 
acknowledge the possibility of the de facto power of the exist- 
ing legislature to save the state from convulsion, as it might 
have done. That would be giving up to the Populists. The 
Populists shall expand their patriotism and give up to the Ee- 
publicans, or let the state convult. 

The court is impelled ''by the conscientious (W&ohiWgQ oiiis 
duties." After the court has completely vindicated the Douglass 
house, and given play to its conscientious convictions of the legal- 
ity of the Douglass house and the illegality of the Dunsmore house, 
does the conscience of the court then cease to be the servant of 
the state and, l)y denying the de facto\)0\yeY of the legislature, 
abandon the state to a physical struggle for partisan supremacy? 



43 

The court is "constrained by the imperative commands of 
the constitution^'' (section not cited) though the appropriations 
may fail, and all the departments of the government be without 
funds, and the educational, charitable, and criminal institutions 
be closed. What is to become of the constitutional provision 
for the even maintainance of justice by payment of fixed sal- 
aries to the judges at stated times? Does the constitution re- 
quire tliat felonies shall go unpunished for the next two years 
because the penitentiary has gone out of business? Are there 
higher constitutional duties than the constitutional command 
that the salaries of state officers shall be regularly paid at stated 
times? Is tJie constitutional command that "the leo-islature 
shall provide, at each regular session, for raising sufficient rev- 
enue to defray the current expenses of the state for two years" 
to be left without performance? Are the banks and the insur- 
ance companies and the railroads to go without governmental 
supervision, control or taxation for want of the payment of the 
public expenses and the compensation of the officers wdiich the 
constitution enjoins? The obligation of public officers to serve 
the state is no greater than the constitutional obligation of the 
state to pay its officers; if the pay should fail every public officer 
M'ill be furnished an excuse for neglecting public duty. The 
State University, established by the constitution, and all great 
educational institutions of the state are to be turned over to bats 
and owls; the charitable and benevolent institutions which, by 
command of the constitution are to be "nourished and support- 
ed" must be closed, and the insane, the blind, the deaf and the 
dumb are to be sent (they w^ould have to walk) back to their 
counties; the penitentiary wdiich the constitution commands to 
be established and kept closed is to be opened and the criminals 
turned loose upon society. 

Does any one suppose that the Eepublican party seriously 
intended that this condition of things should exist for two years 



44: 

in the State of Kansas? . It is anarchy, pure and simple, in its 
worst conception. It is the complete blocking of the wheels of 
governmental machinery, the destruction of justice, and of law 
and order. Society could not endure it; and any expedient to 
be rid of it would be tolerated. If Governor Lewelling and the 
Senate would not recoffnize the Doucrliiss house then Kansas 
must be provided with a Ciovernor and Senate which would 
recognize them. What that would mean, judge ye. 

What meant that second proposed election of a Democrat 
to the United States Senate announced by the Eepublicans the 
week before the arrest of Rich, if it did not contemplate the 
reoroanization of hoth iranches of the legislature. It could not 
be accomplished by the consolidation of the Populists with the 
Douglass house. The Kepublicans claimed 6i membei"s, 2 of 
Mhom had voted for Martin and would do so again. All but 15 
of the Senate were Martin men. The combined vote for a can- 
didate against Mr. Martin in the Senate and both Houses could 
not exceed 77 in all. On the other hand Martin would have 
the support of the oS certificated Populists, 2 members of the 
Douglass house, and all of the 25 Senators who had voted for 
him before; making S5, and a majority of S above the combined 
opposition. In a scheme of this sort no one could expect any 
Populist to abandon the support of Mr. Martin. There v.as no 
plausibility in the proposition except upon the expectation that 
the Senate as w^ as the House was to be reorganized. A 
Democrat must be their candidate because the stalwart Demo- 
crats in the Douglass house were necessary to their quorum re- 
quired to unseat Populist members to effect the reorganization. 
The stalwart Democrats miorht ^o into the Dunsmore house, 
and nothing short of the promise of a United States senatorship 
would hold them in a scheme of reorganization. 

The order for the arrest of Rich in the Douglass house was 
preceded by a series of resolutions, supported by an elaborate 



y^ — 




__d 



45 

speec-li of Spcalcer j',;/*^ tern Hoch, proclaiming the amiable will- 
ino-ness of the Republicans to solve all controversies by an ap- 
peal to the courts; but if the program for the arrest of Rich had 
been carried out without his being rescued it -would have fur- 
nished no judicial solution to which the Republicans would have 
adhered for a moment. There was upon the Supreme bench a 
Populist judge, who believed in the legality of the Populist 
house, and who had been elected by the Populists, the same who 
delivered the dissenting opinion in the Gunn case, and to whom 
is given by statute the same power to issue writs of habeas 
corjnis and finally determine the same, M'hether in term time 
or vacation, beyond ail power of appeal, as the Supreme Court 
itself; and, by Judge Allen, Rich could have been as absolute- 
ly and lawfully protected from all arrests and interference of 
the Douglass house as the Supreme Court could have done had it 
so desired. In some way the arrest of Rich was expected to serve 
the cause of the Republicans, but it was not expected to do so 
through a peaceable solution of the controversy by the courts. 
Neither had the unreasonable increase in the number of 
sergeants whom the Douglass house had at that time appointed, 
nor yet the preconcerted and systematic display of force and 
numbers then in Topeka, or on the road there, or which came 
after, any legitimate connection with the peaceable solution of 
the controversy in the courts. It could serve no purpose in 
the Rich case unless intended to overawe Judge Aden, which 
would have been unlawful. It could serve no purpose in the 
Gunn case more peaceable than to demonstrate that the trilling 
omission of the statute in failing to provide a means of carrying 
the decision in favor of the Douglass house into effect might be 
obviated. The great object which the Republicans had in that 
display of force was their belief that the Populists would not 
yield to the expected decision of the Supreme Court in favor of 
the Douii'lass house, and there let it rest. 



46 

Long as was the Gunn case drawn out, and late as was the 
decision, yet, contrary to the expectation of the Populists them- 
selves, the legislature had not yet adjourned when that decision 
was rendered. There was no known reason for its still being 
in session except that, with its interruptions, its deliberation, 
caution and slowness of action, in spite of industry, it had been 
unable to satisfactorily finish the legislation intended. Surely 
the session had not been prolonged in order to see what the de- 
cision of the court might be. I am not aM'are that this was 
more than an incident unpremediated by anybody. Of course 
the decision would not have, been different in any event. Sure- 
ly this incident was a providence to the state. If at the time 
of that decision the hands of the Populists had been already tied 
by a previous siyie die adjournment, it would have been too late 
for tliat 'Minited and harmonious" co-operation with the Re- 
publicans which the court hoped for, and there would have been 
nothing left for Ka^isas but the other alternative indicated in 
the decision. 

Up to the decision in the Gunn case, the Populists were 
practically unanimous, that the fact of the decision shonld make 
no difference with them, and that they should continue their 
labors and adjourn on or about Tuesday the last day of Febru- 
ary. 

The Iiepublican party, of course, is not to be judged by 
what the Republicans in the legislature did not do, but those 
Repnblieans are responsible for the natural and probable con- 
sequeiices of conditions which they had themselves brought 
about; if thev brono'Iit the state into a danger, the state must 
take warning of the Republicans notwithstanding the danger 
was averted from another quarter. The war proclamation of 
the Douglass house that the Populists "openly proclaimed in 
advance their determination to disregard the judgment of the 
courts'' in regard to the legality of the two Houses, was strict- 



47 

ly right in point of fact, and the Ropnhlicans are chargeable 
with full notice of the intentions of the Populists in this respect. 
If that would justify the assembling of the armed thousands in 
Topeka they are strictly justified. It was not concealed that 
that legislature itself claimed the jurisdiction which the court 
afterwards saw fit to assume. The binding force of such de- 
cision of the court alone, the Populists would have ignored for 
reasons which are stated above, and for many other reasons of 
the highest moment; and that purpose they retained until they 
heard from the lips of the judge, or read the printed words, that 
the court had decided in advance that all of their acts would be 
held invalid and not given de facto validity to save the state 
from any emergeuc3^ But so far as the Eepublicans in the leg- 
islature are concerned, or the court itself, or anybody, up to 
the time the decision was rendered, all were bound to calculate 
that the Populist legislature intended to complete its work and 
adjourn sine die. Whatever disloyalty attaches to the holding 
of that purpose before the decision was rendered the Populist 
party is fairly chargeable with. 

The sine die adjournment of the legislature then expected, 
would, under the decision in the Gunn case, be in conflict with 
the provision of the constitution that "neither House should ad- 
journ for more than two days without the consent of the other." 
The Populists, would go home; Init the House, which under the 
Gunn decision was the only constitutional and lawful House, 
not having consented to the- adjournment, the Republicans, 
Senators included, would stay in Topeka and continue the legis- 
lature. 

About the time of the Gunn decision, one of the stalwart 
Democrats in the Republican house received instructions from 
his constituents not to participate in the election of another 
Democratic senator, which the member decided to obey; and as 
the Democratic senatorial candidates could no longer hold the 



48 

DoiKJ-lass house under obligation for its quorum, those candi- 
dates abandoned tlie field and went home. As the probable ef- 
fect of, the post-adjournment continuation of the legislature 
would be to becloud Mr. Martin's right to the senatorship, the 
Republican house was liable to be left one short of a quorum; 
and the Senate would certainly be without a quorum, having 15 
where 21 were necessary. But in both Houses they would be 
"amply able'' to enforce the right of a minority to compel the 
attendance of a quorum; and in both Houses the Republicans 
would have the majority of a mere quorum, and the right to 
transact business, as carefully explained in the Gunn case, and 
there is no constitutional limitation of the power which both 
the House and Senate, when so constituted, would have to de- 
clare vacancies. 

But how should they, the Senate especially, obtain the nec- 
essary number to "pass any bill or joint resolution" within the 
requirement of the constitution? The Republicans have ex- 
plained how this was to be accomplished in two important par- 
ticulars. 

First: The original measures for the tacation of the seats 
of the Populists had been scrupulously preserved by systemat- 
ic postponements from time to time, and were still pending in 
the Doucrlass house subject to final dispo.-ition, and incorporated 
into these proceedings was a resolution to ofiieially notify the 
Governor of the vacancies, to the declared end that he should 
issue writs of election to fill the vacancies; that the Governor 
must issue such writs of election upon satisfactory information 
of the vacancies is a plain command of the statute. 

Second: The court in the Gunn case had declared the doc- 
trine that the court had the right to imprison the Governor, if 
he should fail to perform what the court believed to be his stat- 
utory duty. 

The authority for this last pi-oposition was based upon a 



49 

case of niandarans decided by the Kansas court, (overruling, as 
the court admits, "the rule laid down in Pennsylvania, Georgia 
and in several other states") where a Republican Governor had 
submitted to the court's claim of jurisdiction without making a 
test upon it. The philosophy is that the decision of the court 
as to the extent of its own authority is law. and the court may 
command the Governor upon the presumption that the Governor 
will obey the law, and compel the court to imprison him. That 
free government must perish if the unqualified authority of such 
reasoning is acknowledged ought to be apparent to every lover 
of free government. If the right of the court to be the limit 
of its own authority is not kept within the constitutional lines 
of the judicial department, then, if the acute sensibilities and 
pure consciences of the judges should ever be dulled or tainted 
by the seductions of corporate power or great financial interests, 
how helpless would be the condition of the people when thus 
left a prey to these great jjowers and interests. The decisions 
of the courts are intended to be of perpetual power, they are 
never altered or reversed except by the sternest demands of 
public necessity, and the jutiiciary is but once amenable to the 
people where the executive and legislative ofiicers are three 
times amenable. 

The power to issue a mandamus includes the power to im- 
prison for disobedience of the mandamus. If the Governor re- 
fuses to issue writs of election upon the demands of the Doug- 
lass house it has been, in effect, decided that the mandamus 
shall issue; and when issued the Governor can protect himself 
from imprisonment only by obedience, if the writs of election 
are not issued, to jail he goes, 

AVhat matter if the issuance of the election writs by the 
Governor compels him -to repudiate his every act of recognition 
of, and co-operate with, the legislature which has adjourned; 
what matter if the issuance of those writs invalidated every pro- 



50 

vision wliich that legislature had made to continue the state 
government and maintain law and order; what matter if the is- 
suance of those writs would besmirch the action of the United 
States senate in the admission of John Martin as Senator and 
becloud that gentleman's title to the office; what matter that 
the Populist voters should be confounded by the poblem wheth- 
er they should repudiate the election to sustain what their rep- 
resentatives had done or attempt to beat the Republicans at the 
polls, and so ratify the Republicans' assumption of power; none 
of these excuses would avail. The Governor must issue the 
election writs or go to jail. 

It is not in the constitutional intendment that the execu- 
tive functions shall be performed under the amenities of Sheriff 
Wilkerson and his subordinates, either in the capitol or the 
Shawnee county Jail, and the imprisonment of the Governor 
would constitute such "Removal or other disability" as would 
cast the office of Governor, under the constitution, first upon 
the Lieutenant Governor, and next* upon the President of the 
Senate. These both being Populists, and refusing to issue the 
election writs as the Governor had done, would both be com- 
mitted to jail as he had been, and, under the constitution, George 
L. Douglass, Speaker of the House of Representative, would 
have become Governor of Kansas; and Governor Douglass 
would, of course, issue the writs of election. 

It may be denied that the court asserted the right to im- 
prison the Governor, or even fine him, for disobedience of a 
writ of mandamus. All the same the decision in the Gunn case 
gave legal sanction to proceedings already commenced which, 
without war and bloodshed, could end only in tiie submission, 
or the complete overthrow of the Populist adminstration. A 
statute provides, "If any officer on whom any duty is enjoined 
by law, relative to general or special elections, should be guilty 
of any willful neglect of such duty, he shall, upon conviction 



61 

Biereof, be guilty of a misdemeanor * * and shall be im- 
mediately removed from office.'" The statute further provides 
that, "The Secretary of State shall, immediately upon the 
receipt of the special election returns at his office, convene at 
least two of the State Board of Canvassers, beside himself, who 
shall proceed as in case of general elections*" The State Board 
of Canvassers is composed of the Governor (or, in lieu of him, 
first, the Lieutenant Governor and second, the President of the 
Senate) Secretary of State, Auditor of State, Treasurer of State 
and Attorney General, none of whom could be expected to can- 
vass the vote, and all would, by command of the statute above 
quoted, be removed, and Governor Douglass would, under the 
constitution, fill their vacancies by appointment, until the next 
general election, and the "Provisional Government" would be 
established. 

Kothino; less than the complete revolution of the existing 
government which is descril)ed above could have resulted from 
tlie program wliich the Republicans had arranged ; and had the 
Governor called upon the force oi the state to defend the gov- 
ernment from this oncoming revolution, as he would have done, 
but for the circumstance that the legislature had not adjourned 
when the scheme was discovered through connectino; events and 
between the lines of the Gunn decision, Kansas would have be- 
come the field of sedition, carnage and destruction too revolting 
and fearful to be contemplated. 

After this discovery, intense were the hours before the 
Populists had taken their resolution which decided the fate of 
the state. On Tuesday morning, February 2Sth, without any 
conference with the Republicans, without any assurance as to 
the payment of their employees; asking.no favors through the 
humility of capitulation, having spread upon their journal their 
unfaltering protest embracing substantially the reasons outlined 
in these letters, they took the flag which had draped their speak- 



52 

''1?:;^ •■"f V^°^f:' '" P™'^^^^'"" inK,Eopro.entativehaII, 
r, rested "^' ""' °''' """"' ''"'" "'^ ''"J' "''«" ^ich ««; 



CHAPTEE VL 



Three hundred and twenty-five thousand Kansas men, on 
behalf of themselves, their wives and their children, comprising 
a population of practically one and one-half millions, have en- 
tered into a written compact with each other that peace, order 
and iustice shall be maintained throuo-hout the domain within 

•I o 

which the interests of all are centered. In this written contract 
these 325 thousand men have ordained unto themselves agents 
to carry out the provisions of, and the better to secure the ends 
for which, this compact was constituted. In the last election 
163 thousand of these men declared their confidence in the nom- 
inees of the People's Party to perform the duties which that 
compact imposes on the ordained agents of the whole number; 
157 thousand of them preferred the names on the Republican 
ticket; and five thousand designated their preference for yet 
other persons to discharge those functions. But all of these 

men had agreed that the choice of the larger number should de- 
cs o 

cide which class should administer and discharo-e the terms of 

D 

the compact. 

The agreement of the minority to render obedience to the 
majority was not because they were less wise or less capable of 
administering the government than the majority; nor yet was 
of the minority because they that agreement were less pow- 
erful than the majority. No large minority is necessarily 
physically weaker than, and therefore bound to submit to, a 
small majority. The right of a minority, however large and 



54 

powerful, to appeal to physical force is deliberately sur- 
rendered in the compact; and the great mass of the minority 
party of the men of Kansas today would not eliminate that feature 
of their compact, and take forcible possession of the adminis- 
tration, if they knew they could do it, and without the shedding 
of a drop of blood. They obey because they recognize the ne- 
cessity of a regulating and directing power as indispensible to 
peace, order and justice, and, in a government whose first prin- 
ciple is to concede the superiority of none, they repudiate the 
ao-ency of force, and acknowledge the equity of submitting to 
the choice of the larger number. This is the American interpre- 
tation of "Majority Rule," and three-fourths of the men of Kan- 
sas would rather fight, if fight they must, for that rule thus in- 
terpreted, and for the rights of a majority, however small, 
under that rule, than to decide any abstract and conflicting 
claims of jurisdiction merely; and they will never, either by 
ballot or bullet, decide the conflicting claims of friends or foes 
to the prejudice of the chartered rights of the majority under 
the constitutional compact. They will vote the way their fath- 
ers shot in 1776, part}' or no party. 

The ag-ents whom these 325 thousand men have ordained 
are of three classes, and to each class they have given their ap- 
propriate commands. 

To one class they say: prescribe rules of action, with- 
in the limits of our constitutional inhibition, and additional to 
what is therein contained, such as you, representing us, shall 
deem necessary to realize and carry out the purposes of our com- 
pact; dividing yourselves into two difi'erent bodies according to 
the character of the districts you represent, (for the formation 
of which districts our compact has provided) and we give you 
all the authority needful to the accomplishment of what we have 
commanded of you. As '-a rule of action prescribed by the 
supreme power of a state is law," we have given you '-Supreme" 



55 

power; but your commissions shall quickly expire, and all your 
acts shall be subject to our approval or rejection at short and 
often recurring intervals. 

To another class they say: interpret and apply the 
RULES OF action which we in our compact and our representa- 
tives in their statutes shall have prescribed. Since "Judicial 
power is the power to interpret and apply the laws," we name 
you judges. Your relation to our legislators concerns only 
their completed work. Your duties begin when theirs is ended. 
If their statutes conflict with our compact do you designate and 
apply that which is the higher or true law. Lest your judicial 
powers should be invoked to interference in the make-up of those 
bodies whose acts you are to judge of, we withhold from you 
such judicial power and vest it in those bodies themselves. You 
are not to have auv hand in the making of the laws. Your de- 
cisions shall vest rights as absolutel}'' as the most solemn con- 
tract, shall be binding on all officers and citizens, shall not be 
affected by the action of the people at the ballot box, shall be 
subject to reversal or modification only when yet sterner exi- 
gencies of actual experience shall enforce the necessity of their 
review, and then only in actual cases brought, and in the reg- 
ular forms of judicial pi'ocedure. Our compact secures the cer- 
tainty of your compensation at stated times. The tenure of 
your district officers shall be twice, and of your general and 
supervisory officers shall be thrice that of any other agents to 
whom we have delegated power. 

These 325 thousand men have ordained a third class of 
agents to "carry the rules of action into effect" which 
they and their representatives have prescribed and their judicial 
agents have interpreted and applied. There is a sense in which 
to apply law is to enforce it, as when a court issues execution 
or other process, either incidentally to enable it to perform its 
functions, or finally to make application of the law as the court 



56 

has intrepreted it; and so courts are furnislied with officers and 
with force to apply the law. These powers of the courts de- 
pend upon the consent of the parties which is contained in the 
constitutional compact to submit to the powers of tlie judiciary 
to interpret and apply the law, so that it is both true and com- 
mon so say "a judgment is a contract." This power of the 
courts is not to be confounded with the executive powers and 
duties of the state, for which it has ordaiwed a distinctively ex- 
ecutive class of agents to execute and enforce the laws. One of 
this class they have made a chief, and the command to him lit- 
erally is; "You shall see that the laws are faithfully executed." 
You shall adjourn and convene the legislature when the accom- 
plishment of jour duties require it on extraordinary occasions; 
you shall dispense the pardoning power; all executive officers 
shall report to you statedly and when you require it; you shall 
keep and use the great seal of state; and all commissions shall 
come from you. You alone may declare the existence of insur- 
rection; you alone may declare the necessity for the physical 
force of the state to execute the laws, and to suppress insurrec- 
tion; you alone may call for "the active support" of that 
physical force, and you alone shall be its chief commander when 
called out. Your power is great, your tenure of office is brief: 
you shall quickly answer to the people. 

Under the distribution of powers prescribed in the constitu- 
tional compact, let us examine certain of the performances at 
Topeka last winter; that war proclamation of the Republican 
house issued over the signature of George L. Douglass-, its Speak- 
er, declaring the existence of an organized conspiracy and force 
to over throw the lawful House, and calling the physical force of 
the state to its "Active Support" ; that swearing in and arming 
with guns and pistols of 668 deputy Sergeant at Arms, that 
act of their sworn agent in their personal presence and hearing 
of calling for two thousand Santa Fe chop men to defend them, 



57 

those other thirty- two companies of thirty men each, organized 
under the call of that House and dismissed by their pleuipoten- 
-taries and those other thousands of reserves called out by that 
House and waiting in the streets of Topeka for orders. Where 
■does the lower House of the legislature fiiid in the constitution 
the power to do these things f 

Ev^ery one of these acts, the power to declare the necessity 
for them, the calling out, organizing, mobilising and discharg- 
ing of these forces, is by the constitution an executive act, and 
expressly given to the Governor, and to the Governor alone, 
and when called out he alone must be their chief commander. 

Bat you say "we were the lawful House and were en- 
titled to protection." During the thirty days while you main- 
tained the status quo with the Dunsmore house, they were 
according to you such consideration as a rival claimant as 
amounted to all the protection you really needed before the 
Senate should recognize you; all the protection that they had 
themselves or expected to have till they ended the legitimate 
work of the session. You broke up that statics quo, assumed 
an aggressive attitude, brought the threatening condition upon 
yourselves, and then called for the force of the state to protect 
you from what you had brought upon yourselves. Where does 
the lower House of the legislature find in the constitution the, 
power to do these things? 

You said you knew the court would decide in your favor, 
but you saw that it had no power to apply its own decision, and 
your breaking up of the status quo, and bringing that great 
force to Topeka, was a denial of the complete jurisdiction of 
the courts which you so loudly asserted. You said that not- 
withstanding the expected decision of" the courts in your favor, 
the Governor was conspiring with the forces of revolution and 
anarchy to withhold from you the protection v^hich you were 
entitled to have; that you would organize the people to resist 



58 

tlie lawles?ness of the Governor, and so obtain your legitimate 
pi'otection. \V/ie?'e does the loioer House of the legislature 
iiiid in the constitution the j)Oioer to do these things? 

We were compelled, you say, by conditions not contemplated 
in the constitution, by the failure of the Governor to furnish 
us that protection which the law contemplates, and by our 
rights as a lawful House, and by" the necessities of our situation, 
to assume a power which is not enumerated in the constitution 
as among the powers of the lower House of the legislature. 
But the constitution says "All powers not herein delegated 
remain with the people." 

The constitution itself concludes the discussion. The "only 
lawful and constitutional Plouse" has assumed powers which 
the constitution forbids any legislative body to assume. A 
legislative body, the legality of whose quorum, by the election, 
is at best doubtful, has both encroached upon the reserved 
powers of the people and assumed to exercise functions which 
belong to the executive department, and that, too, when a 
majority of the men of Kansas have elected that executive 
beyond a question or a peradventure. 

A Eepublican judicial body, while holding the judicial 
department' of the state, has asserted the. power to repeal all 
acts of a Populist legislature, and itself assumed the perform- 
ance of the legislative duty of organizing the legislature; a 
Republican legislative body has relieved the Populist Governor 
and taken upon itself the executive powers of Ihe state; one of the 
departments and a piece of the other has absorbed all the powers 
of the three departments of the state; the feat was accomplished 
by the assistance of a few thousand armed Republicans; and 
"The Republicians should have the credit of standing for law 
against revolution and anarchy." A would-be prophet of God 
who makes that declaration must either modify his politics or 
his religion, or else resign his commission, for God's promise 



59 

through Jeremiah is "I "^'ill give you pastors according to mine 
heart, which shall feed you with knowledge and understanding. 

The constitutional tifty days of last winter's session was 
consumed in solving the "Legislative Muddle." In that 
solution powers distributed constitutionally to the three de- 
partments were called into play, and all were absorbed by the 
court and the Douglass house, to the complete subjugation of 
the executive and legislative officers wliom the people had 
elected, and to the contempt of the voice of the people ex- 
pressed at the ballot box. This is the non-dcscript sort of a 
government which the state of Kansas had during the fifty 
days of last winter's session. 

The past is past, but what does that condition of the past 
foreshadow for the future. Look at those senators, Thatcher 
and the rest! We have for yeai-s been educated to believe 
them to be wise, capable and patriotic. A burst of thunder 
from the vaulting arch of blue above us in the midst of a summer 
day of cloudless sunshine could not be more astonishing than 
the declaration of those Repuljlicans that the senate ivas not the 
senate: that the Republican senators were the senate, and, with 
an unrecognized Ilcpublican house, they could constitute the 
lawful Joint Assembly to elect a state printer and a United 
States senator. That act transpired in the comparatively 
peaceful days of the early part of the session. Just as certainly 
as that act foreshadowed the perilous crisis which followed a 
few weeks after, just so surely the forceful subjugation of the 
constitutional department of government of last winter's session 
foreshadowed yet more momentous events in the unknown 
future. "Tlius saith the Lord, For three transgressions, and 
for four, I will not turn away the punishment thereof, because 
they remembered not the brotherly covenant. — Amos. 

Within the lines of the Republican party of Kansas there 
is a war party which calls itself, but is not, the Republican 



60 

party of Kansas. Dr. Mc Vicar. Ex- Governor Osborn, and the 
other members of tlie Itepvil)li('an delegation whicli last winter 
visited the Republican house and urged them to submit to the 
constitutional authorities, and all the balance of the Republi- 
cans of Kansas avIio are like that Republican delegation, do not 
belong to this war party. This war party, which was success- 
ful last winter, believes itself to be ready, has formed its alliances, 
has laid and charged its electric wires, has prepared the powers 
of its combinations to come into play '-'■in the event of another 
outhreaU,'''' and the finger of ambition and greed is playing on 
the key board of events ready to bring on the outbreak when 
the moment is opportune. When that moment comes, out go 
the lio-hts of liberty and all must grapple in the death struggle. 
"And coming events cast their shadows before." 
After the thunder-clap in mid-sunshine we expect a storm. 
Shall we look for sunshine to follow the war-burst at the state's 
capitol last winter? The way to avert and avoid danger is to be 
ready for it. The need now is that men should awake. The 
call of country is not to Republicans, not to Democrats, not to 
Populists, but to the men of Kansas. Look, men to your in- 
heritance! Let not your lethargy till the land with broken 
hearts and chain the independence of the people for centuries 
to come. Your fathers oave vou this bounteous, wealth-bear- 
ing land to till with a race of princes, such as were the imme- 
diate descendants of the Revolution. But you cannot sleep and 
conquer. You can, if you will, rekindle the fires of courage, 
fortitude and hope on domestic hearths, even in mortgaged 
homes, and the secret of your trium|)h shall be the independence 
and sovereignty which is written for the people in the constitu- 
tion, even of this our state of Kansas. 

]S^umbT3red among those who shall read and approve what 
I am Avriting are Repnlilicans, and Democrats too, who will not 
concede to the People's Party a monopoly of these sentiments. 



a m I n m n t m 







Broken <foor of Ropif tentative Hall-Bcuglass and Hooli in the fore- 

''Republicans have adopted the sledge hammer, * * * to be used 

as a gavel." See page 64. 



I 



61 

God help us all if party lines do not fade out of siglit in the 
light of these appeals. I trust that such will take no offence 
if I now devote a paragraph to that class of middle-of-the-road 
Populists whose hearts sank witiiiu them, and whose courage 
well nigh left them, when John Martin, a Democrat, was elected 
by a Populist legislature to the United States Senate. 

These men formerly were Republicans, but not all of them. 
There was so much of the virus of the old parties left in the 
Po])ulists that former Democrats were easily reconciled, and 
former Tvcpublicans were greatly chagrined at Mr. Martin's elec- 
tion. To- complete the mortification of the latter class it was 
only necessary for the Republicans to say; See, the People's 
Party is but the tail of the Democratic kite? Yet all the time 
those self same Republicans stood pledged to the support of 
Fort Scott Harris, Mitcliel, Crouch or any other self-styled 
stalwart Democrat whom the three Democrats in the Republi- 
can house might agree upon. The. jewel of consistency which 
shone on the Republican breast works was but a paste diamond. 
Still honest Populists were inclined to bitter disappointment at 
tlie action of their representatives in the election of Martin. 
But, from their own stand-point, he was infinitely superior to 
any other Democrat or Republican who had been mentioned; 
and Mr. Martin's eminent and spotless personal character, his 
unfaltering patriotism, his pitiless denunciation of existing 
abuses, his out-spoken and heroic devotion to the ends of sincere 
reform, were suflacient to save the People's movement in Kan- 
sas from serious relapse. With the Populists who are still not 
satisfied 1 must take the liberty of yet sterner language, leaving 
them to judge whether I am justified in doing so. Think yon 
that your duty to your country is ended if you but smile when 
you are pleased, and frown or sulk at what displeases 3'ou, in 
the discharge of public affairs? The moment of John Martin's 
election was ominous. The atmosphere was filled with suspend- 



62 

ed expectation. Men felt their hearts beat, and unseen shadows 
of events to come darkened their spirits. There was friction 
in very nature, alternating in hot breaths and cold blasts 
mingled with the profound hush of gathering fury, like that 
which goes before the ministers of wrath in the powers of the 
air when they descend upon the earth in storm chariots, with 
thunder bolts and fire, to wreck and destroy all before them, 
A revolutionary army of five thousand men would be in Topeka 
inside of three weeks; the force, the guns, the bayonets of the 
state would be pointed against itself; and the legisture must disor- 
ganize, or go forward over a judicial ultimatum which m'eant blood 
shed and general convulsion. These things were in the air; no 
man could state them; no man could see or prove them, but all 
con\d feel them, certainly as you feel the approach of a cyclone 
though you cannot foretell its consequences. Under the shadow 
of this oncoming convulsion the Populist representatives cast 
their votes for United States Senator. They hoped to break 
the force of the mad elements by firing a cannon shot th'-nugh 
the whirlwind. They resolved to destroy the Republican pre- 
tense of a quorum, and capture their three Democratic members, 
by themselves voting for a Democratic United States Senator. 
But there was more in the name than in the fact of the democ- 
racy of those three men. They could perhaps have been cap- 
tured if each of them could have been given a United States 
senatorship, otherwise they preferred to carry out the schemes 
of the Republicans. Now, my middle-of-the-road brother, 
where were you when those things happened? Were you, and 
such as you, at Topeka with guns on your shoulders, ready to 
supply the constituted authorities that support which at a cer- 
tain moment was indispensible, and to counteract the arrogance 
of the menacing thousands; or were you at home "sowing oats," 
so far away from the place where you could do any good that, 
had you started, you would have found no Governor to shako 



63 ■ 

hands with when you got there? If you had been there to fix 
things, with year guns, you might have fixed them to your 
liking, but you were not there and the other fellows were; your 
friends who were there had to fix them the best they could with- 
out you. I am glad you did not come to Topeka. I would 
not have you imitate the example of those Republicans. Kan- 
sas was not ready for the conflict which we all trust she may 
never encounter. But I submit that it is one of the items of 
your misfortunes in this issue that farther criticism of Mr. 
Martin's election, which would ordinarily have been proper 
enough, is now out of order on your part. Kansas Populists 
may ''Be not forgetful to entertain strangers." If the man has 
such moral qualifications that he will stand where other Kansas 
senators with great intellectual qualifications have fallen, if he 
can stand up and not fall down before his party-god; then, not 
only Populists, but the whole state has use for that man. Hii 
hour of trial is awaiting him. We shall soon see. Meantime 
let us accord him every support. 



CHAPTER VII. 



The affair at Topeka last winter was about equal in magni- 
tude of proportion and grandeur to an old time revolution in 
one of the states of Mexico or South America. With the rising 
of that Wednesday morning's sun, (Feb. 15) the vail i ant "Five 
Thousand" burst upon the little handful of officials at the cap- 
itol who possessed only the symbols of power, and, the battle 
having been won, many of them went off to have their pictures 
taken, while the Governor was countermanding his unobeyed 
orders. The foot-pad and his pal who have held up a dozen 
unarmed citizens on the highway need not congratulate each 
other upon their superior courage till those citizens have had a 
chance to show their courage; no more need those few men 
imagine that they have terrorized the whole state of Kansas. 
Hughes was near being nominated for mayor of Topeka last 
spring, and he now wears upon his person a badge which some- 
body has given him, commemorative of that soldier's oath of his, 
a sort of proprietary patent mark on his valorous method of 
obeying orders; the Republicans have adopted the wooden 
sledge-hammer, with head painted black like iron, to be used 
as a gavel in the hands of chairmen of Republican political 
gatherings; the' preachers now regard themselves licensed to de- 
preciate our values by writing for publication to the centers of 
population in the east that our agricultural districts are over- 
run with outlaws who have enthroned anarchy and revolution 
in the state; they say: ''IN^otwlthstanding that little matter of 
our defeat at the polls last fall, we have fixed it with the gun 



65 

and we so scared the cowardly Populists that they did not dare 
attempt to uniix it with more guns." The Republican mem- 
bers and employes have formed a memorial society to meet bi- 
ennially with each coming legislature at Topeka during the bal- 
ance of their Hvey; and the Republican papers are worrying 
themselves and their readers whether Douglass or Hoch shall 
be the next Governor of Kansas. 

Gentlemen, divest yourselves of the belief that the men of 
Kansas have gone daft. We are standing on the mutual com- 
pact whereby these men have pledged their lives for the main- 
tenance of justice and the sovereignty of the people. Do you 
ask us why, if we believe ourselves so strong and invincible, we 
did not manifest our strength and defend ourselves when the 
challenge and provocation were given? Let us consider that 
question for a few^moments. 

On the 26th day of January 1892, Seymour D. Thompson, 
a jurist and author whose name is familiar to the legal profes- 
sion of the entire nation, at the capitol in Topeka delivered the 
annual address to the Bar Association of the State of Kansas, 
of which association Albert H. Horton was the first president. 
Judge Thompson is second to no lawyer in America in point 
of eminent ability and patriotic public service, responsive to the 
highest calls of his noble profession. In politics he no more 
thinks himself a Populist than a Kansas farmer thinks of going 
to the World's fair. That address was delivered to a few score 
of lawyers upon whom it had about as much effect as would a 
shower of rain on the backs of a flock of ducks, or as Allen 
Thorndike Rice's articles, on ballot frauds, in the North Amerv- 
canlteview. When delivered, the address was printed in small 
t;7pe in the back of the annual report of the association, and, 
outside of the lawyers, probably one man of a thousand in Kan- 
sas has read it or heard of its existence. The subject of the 
address was ''The Abuse of Corporate Privileges," but the bur- 



66 

den of Judge Thompson's effort was the wrongful usurpation 
hy the judges and courts of jurisdiction and powers which did 
not helong to them, the encroachments by the courts on the re- 
served powers of the people, to the building np of the present 
abnormal and colossal powers, and the stilted and over-shadow- 
ing influence of these great corporations. Let me quote briefly 
from his opening paragraph. 

"For many years the question has been addressing itself 
to the American people, and pressing with more and more earn- 
estness for a decision whether the corporation is to rule the 
state, or the state the corporation. Corporations have been 
multiplying with an accelerated rapidity and invading and ap- 
propriating every field of industry. Their promoters have pur- 
chased by bribery and corruption exclusive privileges from the 
temporary tenants of legislative power, and judicial casuistry 
has made these privileges irrepealable and endowed them with 
immortality. * * At every step in this baleful progress 
they have had the aid of the only branch of our National govern- 
ment which is non-elective, and which is in no practical sense 
responsible to the people or to any one for its acts, and which 
is totally out of touch with the people in its sympathies — the 
Federal judiciary. Individual members of that judiciary have 
struggled for popular right, but tlicy have been overborn by 
the general current. * * Jurisdiction has been seized on 
-casuistic pretenses; the right of trial by jury has been set aside 
in vast reaches of country; the courts have gone into the busi- 
ness of the common carrier; the by-laws of the corporations 
have over-topped in the judicial estimation the legislation of 
states which were once called sovereign; the constitutional or- 
dinances, earned on the field of battle and intended as charters 
of human liberty, have been turned into the shield of incorpo- 
rated monopoly. The barons of corporate power, outrivaling 
in wealth and splendor the merchant kings of Venice, have pur- 



67 

chased! of renal legislators seats in the Senate of the United 
States, and Lave found no ditficulty in placing their allies on 
the jiwlicial bench. Throughout all this the press — that aegis 
of a free people — ^has been directly or indirectly subsidized into 
Bilence. Or where it would speak, it has been unable to speak,. 
l)ecanse the bar, who alone can instruct the press in legal mat- 
ters, pursuing their courtier-like habits, have not dared to raise 
their voices in public opposition to the work of the judges in 
■whose courts tbey must earn their daily bread." 

In another place he said: "The judges, especially of the 
elective conrts, must have been more than human if tliey could 
have resisted entirely the force of the surrounding impulses. 
Thej drifted with the tide so far as to forget to be impartial. 
Their intellects were "hoodoed" when great corporations stalked 
into their courts in the persons of eminent counsel. Uncon- 
sciously thej did most of their thinking on the side of the cor- 
poisitioa^" 

Again he said, "They consciously intended to seize upon a 
jurisdictkNa which they did not possess. Men are greedy of 
power; judges are but men ; and one of the most pitiable illus- 
trations of this trait of human nature is that courts are greedy 
©f jurisdictioU. And when you have a court which is supreme 
i» every sense of that word; above which there is no superin- 
tendiBg tribimal; you have a tribunal which, in obedience to 
this trait of human character, forever proceeds in one direction 
by one seizure after another of Jurisdiction, so that it threatens 
altimately the results predicted by Mr. Jefferson, of absorbing 
to itself all the powers of government. Power unopposed con- 
-^nually accumulates, and power which is the conclusive judge 
®f its own power continually advances its own aggrandizement." 

We have seen the villianous work of these vampires in the 
discriminations of business, we have felt their extortions in the 
saonopolj of iodQDtries, and we have read of their nasty work 



68 

n the corruption of officials and the prostitution of legislative 
bodies; and we have thought it was, only necessary for the peo- 
ple to read and correct the laws, and elect good men to make 
and enforce them for every man to get his own again. But the 
common public has not understood, as Judge Thompson has 
said, that the new charters of liberty which millions of men, 
filled with the fire of God, have thrust into their constitutions 
upon the very points of their bayonets have been steadily con- 
verted into new barriers around corporate oppression through 
the fuhninations of the courts and the casuistry of the ludo-es. 
Under the benign influence of the insidious and unmiticrat- 
ed scoundrelism exposed in that address, for more than a quar- 
ter of a century has this corporate monstrosity of soulless power 
constructed and perfected its enginery of self aggrandizementover 
popular rights through public debauchery, the coarse vulgarity 
of bribery, the polution of hojior, the contamination of virtue, 
and the degradation of manhood, until now it proposes to seize 
all governmental functions and administer their forces while it 
appropriates their achievements to its exclusive benefit. 

The inseparable connection of a fair degree of wealth with 
well-being has inclined men to tolerate so much of this inordi- 
nate greed as has been allowed to appear in daylight. Andrew 
Carnegie had many approving readers of his article in the 
Jilorth American JReview, written to prove that a very wealthy 
class in this country was necessary for the common folk to ad- 
mire, and be inspired by their elegant lives and stimulated by 
w^hat they had attained. The promoters of this philosophy 
have been "As mildly mannered men as ever" bribed a traitor. 
The tendencies of the times have been to prepare men for these 
things, to lead men to regard them as the natural order of things, 
to predispose men often to look upon them, not as evils, but as 
benefits and blessings. But an intelligent and enfranchised de- 
jnocracy, drawing its inspiration and supplies from the source. 



69 



of all bounty, is beginning to lift its vision beyond the nearly 
apparent, it declines to admire a class which ignores the laws by 
which itself is kept pnre and clean, and it disapproves of the in- 
decent haste of avarice to draw the lines of caste and establish 
the aristocracy of exclusive wealth in this fair land which is the 
heritage of us all. It is very nice for the boys but the frog* 

can't stand it. 

The Press had reliable authority for the statement that 
''The Hepublicans have arranged for about 40,000 men who 
could be gotten to the capitol on twelve liours notice m the 
event of another outbreak." 

Where were those 40,000 men to come from? Were they 
to be brought from the towns of the state to come to Topeka to 
exchange shots with a corresponding number of their neighbors 
from the rural districts who were to come up to be shot at? 
These 40,000 men had not been severally and personally cofa- 
salted in the matter. Each of them was a free American citi- 
zen of personal responsibility, and pledged to peace with his 
neighbors, and to the support of the state; how could such be 
comited on to conspire against the state and go into the busi- 
ness of slaughtering his fellow Kansans? That such was the 
arrangement is preposterous, both from the nature of the busi- 
ness which the 40,000 were to engage in, and the further fact 
that no one could have spoken for them who had any authority 
to commit them to such action. 

How were the 40,000 to get to Topeka? Would they 
walk, or ride, or drive in? It would take more than twelve 
hours for them to get to Topeka in either of these ways. Would 
they come by rail at first class passenger rates, such as the rail- 
roads charged the Populist administration for the transportation 
of state troops? At an average distance of one hundred miles 
it would cost $120,000 to pay railroad fare one way. It 
would cost $50,000 to subsist them three days at less than 42 



70 

cents per day. It would cost $400,000 to equip them. «t f 10 
each. Roughly, to mobilize, organize and barely put them hi 
Topeka on a fighting basis would cost a millioQ dollars; aad 
millions more to maintain them for any eflFectiv^e work. #udge 
Horton would not let any money go out of the State Treasury 
without an appropriation, and at least one braach of tfae legis- 
lature was Populist and that could not be changed by a aev* 
election in time for any such purpose. Had the Republieaaa 
made arrangements for these things? Did they expect by their 
army to seize the revenues of the State, and act indepeadently 
of the national government which is bound by its constitutioa 
to guarantee to each state a Republican form of goverameatl 

With whom had they made these arrangements? 

Four of these great and truly terrible transportation <3ollo8S% 
too faithfully described by Judge Thompson, center in and have 
their departmental headquarters in the city of Topeka, not to 
mention the banks, telegraph, express, and other corporations 
immediately allied to them. The arms of power of those four 
transportation companies extend at every subordinate point of 
the compass into the remotest corners of the continent. The 
power of any one of these four roads to raise money was four 
or five times that of the state of Kansas in her then condition; 
and the money and combined influence of all those corporations 
and companies could brook with impunity the possibility of 
national interference in a cause no more fashionable than the 
mainteinance of the rights of a few hundred thousand yeomanry. 

They could hire the Pinkerton army to stand "guard" over 
their property, and that army is as exhanstless as the army of 
the dissolute and hungry in all this land. They could "Turn 
out men from the shops" and other departments of their serviee, 
within twelve hours fast ride of Topeka, enough to form a large 
aliquot of that forty thousand, without materially interfering 
with their daily operations; these men could be persuaded by 



71 

any argument which with hunger and enforced idleness for an 
ally would be sufficient to convince them; and they could place 
an embargo on every ounce of lead and powder, on every gun 
and pistol shipped to Kansas which did not go directly into the 
hands of their friends and partisans. The general office build- 
ing of one of these companies is noticeably situated. It is lo- 
cated, not convenient to its line of road, nor yet up in the city, 
but on through the city and immediately at the principal en». 
trance to the capital of the Peoples government. It is a many 
Btoried building with numerous plate glass windows. It stands 
like a great sentinel, with eyes as many as the hands of the 
Cyclopean monster Briarius, overlooking every part of the 
grounds and every approach to the capitol. Not a man can go 
from, not a man can come to the capitol by night or by day, 
except under the immediate surveillance of the general officers 
of that road. Not a man can come to Topeka except over the 
rails of these corporations; not a message can be sent out except 
over their wires; they control all the means of inter connection 
and communication throughout the state; and such a thing as 
any action in the interest of the people without their instant 
knowledge is an impossibility. 

I have heard that among great politicians at Washington 
there is a saying "See and you have seen Kansas." Doubt- 
less the parties who "arranged for 40,000 men in Topeka on 
twelve hours notice" had seen somebody. The hand of the 
railroads has been bunglingly shown at every turn of this busi- 
ness; and those who have done the arranging evidently believe 
that the question whether the corporation shall rule the state or 
the state the corporation is already decided in favor of the cor- 
poration. When Frick & Carnegie loaded those two gun boats 
with men hired at two dollars a day to shoot down men who 
Imd struck to get two dollars a day, they were of course specu- 
lating on the issue of the transaction. It was a pitiful sight to 



73 

common folks, but it was expected to add to tlie credit side of the 
account of F. & C. corporations wliich make little distinction 
between hiring men and owning them . These corporations may 
believe themselves al)le to destroy tlie American principle of the 
equality of man; able to remove the obstacle o£ free government 
which threatens to. impede the all sweeping march of their proud 
progress, and to enforce the public and pronounced recognition of 
caste and wealth-aristocracy. They seem to regard themselves 
ready for the struggle, and, as matters are, it is hard to see how 
there can l)e any thing but profit to them in any issue of it. 

Among the early desperadoes of the lower Mississippi, of 
Texas, and the Far West, men were seldom killed upon a sud- 
den quarrel. It was accounted cowardly to take a sudden ad- 
vantage to kill an antagonist, and every man should have a 
chance for his life. The men separated, knowing that when 
they next met it was a question of which should get the drop on 
the other, to decide which of them should die and which should 
be the hero. 

We can fight, doubtless, if we must, at least we always have, 
but give us a chance to know what it is we are going to fight 
about. If, not satisfied with the toil and sweat of the land, this 
always ready — this always marshaled and in-the-field Jewery of 
organized greed and aggregated lucre-lust must also have the 
blood of the land, if "state or corporation" must be settled in 
a life and death struggle of the people, if the inheritance which 
our fathers have left us can be preserved only by the old-time 
method whereby it was achieved, then, let us not at it — let not 
the heroes of the same cause, offering themselves to the same 
ideals, ends and sentiments, commit themselves to the undig- 
nified performance of killing each other for the gratification of 
the Fricks and Carnegies who, from safe look-outs, watch the 
proceeding with spy glasses, exulting indifferently over the 
slayers and the slain. Heads we win, tails you lose. 



T3 

In that little band, recruited within the previous half-hour, 
which formed on the steps of the East portico, under the flag 
above the vestibule of the capital, on that Wednesday afternoon, 
a large portion were Union soldiers of the Sixties, their hearts 
and minds warming and expanding with tlie same fires which 
wafted .Old Glory triumphantly through the darkness of the 
Great Rebellion; over against the flag in the waiting crowd con- 
fronting them, and in the squads which were being organized 
against them, could be seen the coats of faded blue with badge 
or button of the G. A. R. over hearts as loyal to the nation's 
emblem, as brave and true as ever claimed the homage of a 
mighty people; both, all impelled by one and the self same 
thought and motive — country's honor, people's sovereignty, 
liberty and law. Holy memory of our Fathers what a sight 
was that! Let women weep, let patriots tremble, let wise men 
hide their heads in shame. Brothers and comrades do you say? 
It was the one last refuge of virtue in the nation ready to grap- 
ple in the work of mutual self-destruction. 

Yes, may God forbid it, but we may have to fight. Let no 
man flatter himself that it will be a mere Mexican affair if we 
do. The prophecy that there is to be in thi& country a conflict 
between the inordinate money power on the one hand and the 
common people on the other no longer passes as a prophecy. 
It is a trite platitude. Every body knows it. The Kansas leg- 
islative mnddle of 1893 was no muddle at all. Every signifi- 
cance of that muddle is absolutely free from all relation to every 
adequate motive and purpose on earth except to either central- 
ized power (money) or else to the rights and interests of the 
people. 

In the garb of a Populist, without disguise and without 
apology, I have written in condemnation of the course of the 
Republicans. Let there be a pitiless and complete test and in- 
vestigation between us by the measuring- rod of constitutiona 



74 

duty, and with the search-lights of the public conscience, and 
let who of us which is wrong, repent. The Democracy of Kan- 
sas is divided between us; the state dared not look to the Cleve- 
land administration to guarantee to us a Republican form of 
government, and that party can never be made the basis of the 
united action of the whole people. IIow can there be a peace- 
ful administration of public affairs by the representatives of any 
party, unless by a party of insurgents, when a whole section of 
the population is ready to take up arms for selfish ends, in 
wanton contempt of the constitutional compact by which the 
people are held to a common purpose? Not only is it true that 
the long continuation of the Republican party in power in the 
state has rendered the machinery of the state inadequate to any 
thing except its own partisan control, but the events at Topeka 
last winter disclose that the Republican party is dominated by 
a power which makes citizenship within the terms of the con- 
stitutional compact impossible, and something has got to he done 
about it. Will the men of Kansas listen to an appeal which is 
made not to their politics but to their manhood? You say you 
don't like my party. Neither do I in many things. A specific 
end and purpose in all action of the people is now more than 
ever supremely necessary, but party is the instrument which in 
the bands of our enemies is like to destroy us. Out upon all 
parties and all hypocrisy in platforms. Give me the party and 
the plarform of tbe constitution. I here and now declare that 
while I live 1 will have no other. Men of Kansas will you 
meet me there for the best effort we can make of it? I believe 
we are yet able to exercise the forbearance of a pannel of obdu- 
rate jurymen. Let us talk the case over awhile and then take 
another ballot. 

Citizens, what are your American birthrights worth to you? 
You have a voice in choosing your rulers. You periodically 
throw off' your subjection and assert your liberty just long 



75 

enough to help to nominate your party's candidates and to vote 
your party's ticket; then you relapse into your term of obedi- 
ence again^ ^ut is the character of him you must obey every 
thing, and the fact of extorted obedience nothmg? You feel 
that there is some relief in the thought that you may yourselvei 
get office. Yes, all our great men, and most of the small ones, 
for tlie past quarter of a century have gone a fishing — for office. 
It is time to quit fishing and let the offices go a hunting. If 
for a season you enter the charmed circle of public life in an 
official capacity, and even wear "The insolence of office," altern 
ately you must bear it again, and your return to the hum drum 
of ordinary life makes it doubly irksome. You realize that 
these things are illusory, and you strive to glut your lives with 
paltry pleasures, and turn to absorb yourselves in trifles, your 
shops, your trades, your flocks, your herds, your fields, and the 
narrow confines of your domestic lives and avocations. Have 
you lost your country? If these are the net results of the 
'•Sages who wrote and warriors who have bled," do you think 
yourselves so much better off than the people of- other lands 
that it is worth your while to make all this fuss about it? 

Do you know that there is not a monopoly which oppresses 
you, not a bounty of nature for whose benefits you pay tribute, 
not a combination which impairs the fruits of your toil, not a 
franchise whose luxurious profits you envy, not a distinction 
which sinks you below the level of equality, not a danger which 
threatens your peace and safety, that does not result directly 
from the voluntary surrender by yourselves, of powers which 
the constitutions of the land place squarely, ungrudgingly and 
exclusively in your hands? 

We talk of the legislative, executive and judicial, as though 
there were not a fourth — or rather a first — department of power 
in government, whose duties are as vital, whose independence 
is as absolute, and whose functions are as supreme as all the 



76 

otherde partments. The utility of a mechanical engine is not se- 
cured by the perfect adaptaton of all its parts, and by its motive 
power, and the men to ran it. Thesuperintendkngagency of its 
owner must order the application of its operations to his uses. So 
our constitutions recognize the supervisory and proprietary depart- 
ment of government, regulating and directing its powers in certain 
particulars, scrupulously guarding them from encroachments in 
other particulars, and preserving their natnral, absolute and 
supreme character, and free application in all particulars. 

This supeivisory and proprietary department, comprising 
the people's dominion in constitutional government, has been 
obscnrely and inadequately designated by the inexpressive and 
n'>gative term "reserved powers. " It is so long since the Amer- 
ican citizen has trod this native heath of his own dominion that 
he has practically lost all remembrance of it, and it has become 
to him a term iiicognita. Here is the angle in the ground 
work of the great design of our fathers where, yielding to the 
seductions of natnral weakness, the people have fallen down. 
One by -one, here a little and there a little, unconsciously or 
voluntarily, powers have been dropped and surrendered until 
the dignity and greatness of citizenship has passed into the hands 
of those who have gathered up and appropriated these abandoned 
powers. And the mass of the people, like a herd of timid and 
industrious animals, all equal and alike, find themselves in the 
leading-strings of an immense and regulating power above them 
which assumes to be their shepherd and guardian. Unlike natural 
guardianship whose office is to prepare children for manhood^ 
this tutelary power keeps the people in perpetual childhood. 
This power does not destroy men but it degrades them, docs 
not break the will of man but bends and moulds that will to it& 
every service. Men gradually lose all uses of themselves. 
Their power of self-denial, of exalted and heroic action, their 
capacity of rational enjoyment, their functions of mental inde- 



77 

pcndence and competence, their individaality, and all that is God- 
like and masterful in their character slips from their grasp, as ap- 
propriate only for those in whose favor they have abdicated their 
powers. Their deluded and reconciled vision enables them to con- 
gratulate themselves as honest, while they feed the flickering life 
of their own paralyzed hopes and aspirations with the degrading 
doctrine that these things are right and necessary ; and they relish 
die insipid joy with which tliey kiss the hand that oppressesthem. 

The good to which all this evil is counter- part is in the 
legitimate citizenship of the constitution. The only ''way out" 
begins in the conquest and ends in the mastery of the domain 
of the supervisory and proprietary department of government, 
which the fathers of the Republic in onr constitutions dedicated 
to the exclusive occupancy and control of the common people. 
The lost and abandoned powers of the people must be reclaimed, 
kept and administered by themselves, and foi- ricli and poor 
alike. It is not true that "the world belongs to him who takes 
it," but it is true that the world cannot dispute the title of all 
to take that which belongs to all. You and I, my unofficial 
and private fellow citizen, are the ordained ministers and office 
bearers in this supervisory and proprietary department of con- 
stitutional government. Our compensation is to be the wealth 
which results from the application of the powers of these Many 
in One to the unlimited resources of a bountiful Providence 
lavished upon this fair land of ours. Our tenure of office is for 
life and during good behavior, and, at the end of faithful lives, 
our children succeed to the dignity and emoluments of our offi- 
ces. We are not public servants; the tenants of the other three 
departments are our servants, and take the rule of their action 
from our mutual compact and oar expressed will. We render 
no enforced obedience, ourselves being rulers. 

Such is American citizenship in a sovereign state of the 
Union as it has been placed in our hands; narturer of the purest 



T8, 

affections of heart and grandest achievements of mind*; origin 
and source of the nobility of nature, the aristocracy of virtue, 
and the knight-errantry of patriotism. It shames the bastard 
aristocracy of unearned wealth, whose lineage and title is a dice 
throw in a stock gambling den or worse, whose passion for vir- 
tue is consumed by greed of power, whose delicacy is cloyed 
by satiety, whose dignity is hood-winked by arrogance, whose 
tender mercies are cruel, and which has never a grace not bor- 
rowed from a free and honorable democracy. 

We say truly that Greece and Rome perished thousands of 
years ago. But Greece and Rome are still there, and to-day 
the rulers of their destiny and interests would not restore the 
pristine glory of the great republics if they could. In this 
sense the American government is in no danger of destruction, 
and little matter if it were; but the moral. canker of ambitious 
avarice and greed of power poisened the heart's core of Greece 
and Rome before Christ came ; and so we are in danger of de- 
struction by the poison of lingering ruin, and the plagues which 
are communicated by the touch of ill-gotten treasures. 

Kansas was the nation's skirmish ground in the Fifties. Shall 
the winter of '93 be a period of like honor in her history? Men, 
is American citizenship as our Fathers gave it to us worth pre- 
serving and restoring? Shall we save our state and nation? 
Never by the agency of parties. Parties are venal. Let them 
be destroyed. Let the land be made unanimous. Ignore parties 
as we did in the Sixties, or destroy parties as our Fathers did 
in 1776. From what happened last winter, and was like to 
happen, take jealous warning and alarm. Unite upon the plat- 
form of the constitution. Wait noi for conventions and rallies, 
but instantly, in every heart and conscience, declare your creed 
and raise the standard of the constitution, and we shall nail 
Old Glory to the mast head to.be wafted in its orginal purity 
and beauty through a thousand years to come. 



79 



HORTON'S DECISION 

REVIEWED BY 

G. C. CLEMENS. 

"■When his soaring Insolence 

Shall reach the people, 

* * * will be the fire 

To kindle their dry stubble; and their blaze 

Shall darken him forever I" 

— Shakespeare. 

" So spake the Fiend, and with Necessity, 
The Tyrant's plea, excused his devilish deed." 

— Paradise Lost. 

An Itinerant doctor whose specialty was fits had brought to him a patient suf- 
fering from asthma. "Can you cure her, doctor?" asked the anxious parent. "I can't 
cure asthma," said the doctor, "but if I can only throw your daughter into fits. I'm 

h 1 on fits I" Something like this plan is that often adopted by persons engaged in 

controversy. The position of an opponent being clearly unanswerable, the only ex- 
pedient is for the debater to assume that his antagonist has advanced some other 
position that can be attacked. Who has not heard of the stock advice to young law- 
yers: "When you have no case, abuse the lawyer on the other sidel" This is a trick 
older than Aristotle, for he denounces it as a trick of the Sophists ; and every boolt 
on Logic treats of it as the fallacy of "mistaking the question." 

It may astonish people who did not hear the argument of the Gunn habeas cor- 
pus that Chief Justice Horton's opinion was an instance of this species of sophistry; 
but such is the indisputable fact. We showed that the Douglass House was afflicted 
with asthma; the learned Chief Justice, knowing that he could not cope with that 

ailment, and supposing himself to be "h 1 on fits," simply sought to change the 

disease from one he could not cure to ona that he could. Is this doubtful? Let us 
see. Have you read the Chief Justice's opinion? If so, what did you find was its 
burden? That persons holding certificates were entitled to organize thb 
HOUSE. Then at the conclusion, there are some remarks from Chief Justice Marshall 
as to the duty of the courts to decide cases, and the proposition is advanced that 
THE court has jurisdiction of the case. Now, we did not deny that the members 
holding certificates were entitled to organize the House : we did insist that whether 
they were entitled to organize the House was a question for the house alone, and 
that the court had nothing to do with it. We did not deny that the court had juris- 
diction of the case, for the petitioner himself invoked that jurisdiction. But for 
his own petition, the case would not have been there. Neither did we deny that the 
court must decide whether the Douglass body was the House; for the case could not 
be decided without a decision of that question. What we did insist upon was that, 
IN DECIDING that QUESTION, the court must accept as final the previous decision of 
the senate and of the executive department in recognizing the Dunsniore House; or, 
at all events, must accept that body as the legal House, which was the House in fact. 
In short, the counsel for the Douglass House contended that the court might de- 
termine which body was the House by inquiring into the right of individual mem- 
bers to their seats; while counsel for the Dunsmore House contended that the court 
could not inquire as to individual membership, but must look at each body as a whole 
and see which was actually the house. Counsel for the Douglass House declared 
that the courts,as to all constitutional questions, are supreme over even the legisla- 
ture and the governor ; while counsel for the Dunsmore House insisted that, as to- 
every kind of question, each of the three departments of government is, within its 
own sphere, the equal of each of the other two and that neither department can sit in 
judgment upon the acts of either of the others done within its exclusive domain. 
We affirmed that, in deciding between two contending legislative bodies, each assum- 
ing to be the true legislature, courts must treat them as bodies, and cannot inquire 
Into the rights of the individuals composing them. The question to be decided 1» 
not, what persons are entitled to seats in the house, but, which of these two aggre- 
gate bodies is really the House? The difference between the contending counsel In 



80 

the case arose over this proposition. The difiference was radical and irreconcilable. 
Counsel for the Republicans exclaimed: "Our body contains the more members 
holding certificates." We answered: "But the Dunsmore body is the house!" We 
did not deny their assertion ; they could not deny ours. The Douglass body did have 
more persons holding certificates; the Dunsmore body was, in fact, the House. 
Neither of these affirmations was contradicted; neither could be rationally denied. 
So, if it was to look only at the certificates, the court must sustain the Douglass 
House. If the actual fact was to be considered, the court could not escape recognitioa 
of the Dunsmore House as the real House of Representatives. Hence, the sole ques- 
tion for the court to decide was: "Are we to look at the house alone, or may w9 

look at THE CERTIFICATES ALONE?" 

Everything else would decide itself, once that question should be decided. The 
real point upon which the court's decision was required was: "In deciding between 
two rival Houses, may the courts decide for themselves what individuals in the 
rival organizations were entitled, under the constitution, to act as members of the 
House of Representatives?" The question was not, "What persons in these bodies are 
members of the House?"but,"Have the courts the right to decide who are members 
of the House?" Not the fact, but the power of the court to investigate the fact, 
was the point in controversy ; yet, while Chief Justice Horton's opinion devotes 
whole newspaper columns to debating the question : "Who were the members?" the 
reader will seek in vain for any honest argument upon the question : "Has this court 
THE right to say who were the members of the house?" — the only question the court 
was called upon to decide at all. There was no evidence that the persons holding 
certiflcites were not the persons elected. The court had declined to admit any such 
evidence. Hence, if the question— "Who were members?" — was to be decided at all 
the decision must have been— "Those holding certificates"— for the court had ad- 
mitted no other evidence than the certificates from which to answer that question. 
Is any reader so dull as not to see that the court's opinion spends itself upon an ut- 
terly immaterial matter, while it entirely ignores the real point in dispute? Why 
was so much said in the opinion concerning matters not essential to the decision — 
so little as to the real question? Because the Chief Justice was conscious he was de- . 
liberately usurping supreme, unlimited power over tbe people of Kansas; and, like 
all usurpers, he sought to give an air of legality to his audacious act, and hoped, by 
learned words and patriot cant, to conceal from the people the wicked plot for their 
enslavement. This is the true explanation of that irrelevant opinion of such learned 
length. Compare with it the frank, manly and easily comprehended opinion of Mr. 
Justice Allen. The former was the tyrant's artful plea; the latter was the free utter- 
ance of the intrepid defender of the people. 

Trusting that I have put beyond chance for misconception the real question pre- 
sented to the supreme court for decision, I shall proceed to show how that question 
must have been answered had the court not trampled upon the constitution. 

HOW^ TO FIND A HOUSE. 
Lately the Suprerne Court of Indiana held void the apportionment act under 
■which both Houses of the Legislature had been elected ; so that, at this time, there is 
not in that State one single person legally a member of the House or of the Senate. 
Yet the court also decided that the persons now acting in Indiana as a Legislature, 
constitute a Legislature in fact, and can make a new apportionment law which will 
be valid. In Colorado, the claim was made that the apportionment act was uncon- 
stitutional, and that, therefore, the body which passed a certain law was not the Leg- 
islature ; hence,that the lawwas no law — was void. But the Supreme Court of Colorado 
said the body was in fact the Legislature; that the court could not look to see 
whether Its membership was legal ; and that, therefore, the law must be sustained as 
a legislative act. In deciding this, that court based its decision upon the Kansas Su- 
preme Court decisions to be quoted as we proceed. These two instances seem to 
prove that the question whether a body is the Legislature, is not to be decided by in- 
quiring into the legal election of its members; that the court must look at the body 
itself, as a whole, and discern whether it is in fact the Legislature, that if it is in 
FACT the Legislature, it matters not whether its members were legally admitted or 
not. This must be the case, for there is but one other mode of ascertaining whether 
a body is the Legislature, and that is to inquire into the right of its individual mem- 
bers to act; and this mode tbe Constitution forbids the Courts to adopt. Hence, 
courts must accept as the House of Representatives that body which is such in fact. 
Inquiry into membership is usurpation. The body itself, as a whole, can alone be 
lawfully regarded. 



81 

WHO IS ENTITLED TO A SEAT IN THE HOUSE NOT A JUDICIAL QUESTION. 

Back in the dimmer pages of Englisli liistory, the Chancellor wa6 the King's 
Secretary of State— the keei'er of the King's seal. Whatever proclamation or docu- 
ment of any character the King wished to put forth, was iosued by the Chancellor, 
who affixed to it the great seal. So, when, in after times, writs were issued to call 
elections for members of the House of Commons, the writs were issued Vjy the Chan- 
cellor, and the returns of elections were also made to him. But the King, at last, un- 
able to hear for himself all tlie complaints of his subjects, vested in his' Chancellor 
the power to redress grievances, and finally created the Court of Chancery. So, it 
came about that subsequent Chancellors, forgetting that their predecessors had not 
always been judges, assumed that, because election writs were issued by the Chancel- 
lor and the returns were made to him, he, as a .judge, had the sole power to decide 
upon the elections, returns and qualifications of members of Parliament. In 
the beginning very little attention was paid to this assumption. It seems to 
have been permitted as a mere matter of course. But in tlie reign of Elizabeth a 
struggle began which, under James I., resulted in a complete and lasting victory for 
the Commons, and the complete overthrow of the Chancellor's control of the mem- 
bership of Parliament. Hume gives this interesting and spirited account of the 
struggle of the Commons for the exclusive right to judge of the election?, returns and 
qualifications of their own members: 

•' The first business In which the Commons was engaged was of the utmost import- 
ance to the preservation of their privilege, and neither temper nor resolution were 
wanting in their conduct of it. In the former periods of the Englisli govern- 
ment, the House of Commons was so small weight in the balance of the Con-stitution, 
that little attention had been given either by the Crown, the people, or the House it- 
self, to the choice and continuance of the members. It had been usual, after Parlia- 
ments were prolonged beyond one session, for the Chancellor to exert a discretionary 
authority of issuing new writs to supply the places of any members whom he judged 
incapable of attending, either on account of their employment, their sickness, or 
other impediment. This practice gave that minister, and consequently the prince, 

AN UNLIMITED POWER OF MODELLING AT PLEASURE THE REPRESENTATIVES OF THE NA- 
TION ; yet SO lit tie jealousy had it created, that the Commons, of themselves, witli- 
out any Court influence or intrigue, and contrary to some former votes of tlieir own, 
confirmed it in the twenty third of Elizabeth. At that time, though some members 
whose places had been supplied, on account of sickness, having now recovered iheir 
health, appeared in the House, and claimed their seats ; such was the authority of the 
Chancellor, that, merely out of respect to him, his sentence was adhered to, and the 
new members were continued In their places. Here a most dangeroun prerogaiicc vms 
conferred on the Crown; but to show the genius of that age, or rather the channels in 
which power then ran, the Crown put very little value on this authority; insomuch 
that, two days afterwards, the Chancellor resigned it back to the Commons, and gave 
them power to judge of a particular vacancy in their House. And waen the question 
concerning the Chancellor's new writs was again brought on the carpet towards th'j 
end of the session, the Commons were so little alarmed at the precedent, that, th',ngh 
they readmitted some old members whose seats had been vacated on account f 
slight indispositions, yet they confirmed the Chancellor's sentence in instances where 
tlie distemper appeared to have been dangerous and incurable. Nor did they proceed 
any further in vindication of their privileges, than to vote "that during the setting 
of Parliament, there do not, at any time, any writ go out for choosing or returning 
any member, without the warrant of the House." In Elizabeth's reign, we may re- 
mark, and the reigns preceding, sessions of Parliament were not usually the twelfth 
part so long as the vacations, and during the latter, the Chancellor's power, if he 
pleased to exert it, was confirmed, at least left, by this vote, as unlimited and unre- 
strained as ever. 

In a subsequent Parliament, the absolute authority of the Queen was exerted ia 
a manner still more open, and began for the first time to give alarm to the C">mmons. 
New writs liaving been issued by the Chancellor when there was no vacancy, and a 
controversy arising upon that incident, the Queen sent a message to the House, in- 
forming them that it was impertinent for them to deal in such matters. These ques- 
tions, she said, belonged only to the Chancellor ; and she had appointed him to confer 
with the judges, in order to settle all disputes with regard to elections. The Com- 
mons had the courage, a few days after, to vote "that it was a most perilous prece- 
dent, where two Knights of a County were duly elected. If ar^y new writ should is- 
sue out for a second election, without order of the House Itself ; that the discussing 
and adjudging of this and such like differences belonged only to the House ; and that 
there should be no message sent to the Lord Chancellor, not so much as to inquire 
what he had done in the matter, because it was conceived to be a matter derogatory 
to the power and privilege of the House." This is the most considerablf, and almost 
only, instance of parliamentary liberty which occurred during the reign of that prin- 
cess." 



82 

The stniggle was renewed In the next reign— that of James I. Hnme contlnned: 

The Sir Francis Goodwin was chosen member from the County of Bucks, and hls^ 
return, as usual, was made into chancery. The Chancellor,pronouncinghim an outlaw, 
▼acated his seat and issued writs for a new election. Sir John Fortescue was chosen 
In his place by the County. But the first act of the House was to reverse the Chancel- 
lor's sentence, and restore Sir Francis to his seat. At the King's suggestion the Lorda 
desired a conference on the subject, but were absolutely refused by the Commons, a3- 
the question entirely regarded their own privileges: the Commons, however, agreed 
to make a remonstrance to the King by the mouth of their Speaker, in which they main- 
tained, that, though the returns were by form made into chancery, yet the sole rifjbt of 
judging with regard to elect i07is belonged to the House itself, not to the Chancellor. Jame» 
was not satisfied, and ordered a conference between the House and the Judges, whose 
opinion in this case was opposite to that of the Commons. * * * • 

The Commons were in some perplexity. Their eyes were now opened and they saw 
the consequences of that power which had been assumed by the Chancellor and to which 
their predecessors had, in some Instances, blindly submitted. "By this course.' said 
a member, "the free election of the Counties is taken away, and none shall be chosen 
but such as shall please the King and Council. Let us, therefore with fortitude, un- 
derstanding and sincerity, seek to maintain our privilege. This cannot be construed 
any contempt in us, but merely a maintenance of our common rights, which our an- 
cestors have left us, and which it is just and fit for us to transmit to our posterity." 
Another said : " This may be called a quo warranto to seize all our liberties." "A 
Chancellor," added a third, '-by this course may call a Parliment consisting of what- 
persons he pleases. Any suggestion by any person may be the cause of sending a new 
writ. It is come to this question — whether the Chancery or Parliment ought to have au- 
thority." 

Notwithstanding this watchful spirit of liberty which now appeared in the 
Commons, their deference for majesty was so great that they appointed a committee- 
to confer with the Judges before the King and Council. There the question of law 
began to appear, in James' eyes, a little more doubtful than he had hitherto imagined; 
it: and in order to extricate himself with some honor, he proposed that both Good- 
win and Fortescue should be set aside and a writ be issued by warrant of the House, for 
a new election. Goodwin gave his consent, and the Commons embraced the expedl-- 
lent; but in such a manner, that while they showed their regard for the King, they se- 
cured for the future the free possession of their seats, and the right which they claimed, of' 
judging solely in their own elections and returns. 

The dispute lasted the greater part of three weeks, and Hallam Informs us that' 
"some of the more eager patriots were dissatisfied at the concession made by vacat- 
ing Goodwin's seat." The same author observes that "no attempt was ever afterward 
made to dispute their exclusive jurisdiction." 

The Constitution of the United States provided for the power of Congress to de- 
termine its own membership. State Constitutions have tenaciously adhered to the 
English precedent. And the Constitution of Kansas distinctly provides that each 
House shall "judge of the elections, returns and qualifictions of its own members." 
[Article 2. Section 8.] In the halcyon days when Populists as yet were not, the Su- 
preme Court of Kansas thus explained the effect of that provision: 

"The Constitution declares. Article 2, Section 8, that each House shall judge of' 
the elections, returns and qualiiications of Its own members. This is a grant of 

fiower, and constitutes each House the ultimate tribunal as to the qualifications of 
ts own members. The two Houses acting conjointly do not decide. Each House- 
acts for itself : a?id/jw?i /fs decision there is no appeal, not even to the two Houses. 

* * * * This grant of power is, in its very nature, exclusive: 

and it is necessary to preserve the entire independence of the two Houses. Being a< 
power exclusively vested in it, it cannot be granted away or transferred to any other 
tribunal or officer." [The State vs. Gilmore, 20 'Kansas Supreme Court ileports, 551-554. }• 

Again, in another case at the same term : 

"This power Is exclusively vested in each House, and cannothy its own consent, 
or by legislatice action- be vested In any other tribunal or officer." [State vs. Tomlin- 
•on, 20 Kansas Supreme Court Repoi ts, 692-702.1 

If these decisions were right, it is difficult to understand how "by legislative ac- 
tion" the power could have been vested in the State Canvassing Board and the Secre- 
tary of State to "judge of the elections, returns and qualifications" of members of 
each House: and, accordingly, the Supreme Court of Maine — the Judges being Rei>ub- 
licans — decided that such power ca?i(io; be conferred on the Canvassing Board. Our 
statute simply provides for the issuing of certificates. It says nothing as to their 
effect. But there was in jMaine a statute as follows: 

"No per.-on shall be allowed to vote or take part in the organization of either 
branch of the Legislature as a member, unless his name appears upon the certified rollf 
of that branch of the Legislature in which he claims to act." 

Surely, a statute ought to be as high authority as a text book written by Luthei? 



83 

•Cushlnfjor even by Judge McCrary; and this statute provided for exactly what Chief 
Justice Horton, on the authority of garbled extracts from those text, books, declared 

■vto be universally the law as to the organization of legislative bodies. But, .see what 
the Republican Supreme Court of Maine said of this statute: 

•'We tuink it clearly repugnant to the Constitution, which declares that each 
House shall be the judge of the election and qualifications of its own members. It 
aims to control the action of eacli within its constitutional power until after a full 
organization, with a utajority determined and fixed by the Governor and Council. By 
their action in granting certificates to men not appearing to be elected, they may con- 
stitute each House with a majority to suit their own purposes; thus strangling and 

• overthrowing the popular will as honestly expressed by the ballot. The doctrine of 
that act gives to the Executive Department the power to rob the people of the Legis- 
lature they have chosen, and force upon them one to serve its own purposes. It pois- 
ons the very fountains of legislation, and tends to corrupt the Legislative Department 
of the Government. It strikes a death-blow at the heart of popular government, and 
renders its foundations and great bulwark — the will of the people as expressed by the 

■ballot — a farce. Each House has tlie same power and is charged with the same duty 
— to declare the election of its own members and organize itself in any legitimate 
way as before the passage of that act. (Opinions of the Justices. 70 Maine Reports, 
6a6, 5S7.)' 

Nor did that Court stop here. It further dooIircJl: 

"Holders of summons which are void for the reason that the Goveruor and Coun- 
cil have failed to correctly perform the constitutional obligation resting upon them, 
have no right to take part in the organization or in any subsequent proceedings of 
the House to which they are wrongly certificated. They are not in fact members 
Bnt the mifinbers rightfully elected a,Te eniiiled to a,ppea,T a.nd act in the organization of 
the Houses to which they belong, i;n^.'s.s'</ie;ifuu.s« and Senate, in judging of the election 

^and qualification of members, s/iaH determine to the contrary. A member without a 

-fiummons, who aopears to claim his seat, is prima facie entitled to equal consideration 
with a member who has a summons issued in violation of law. He U not to be de- 
prived of the posiiion belonging to him on account of the dereliction of those whose 
duty it was to have given liim the usual summons. The absence of that evidence 
may be supplied by other evidence of membership. The House and Senate have the 
eauie right to consider and determine whether, in the first instance, such persons ap- 
pear to have been elected, as they have of any and all the persons who appear for the 
purpose of comprising their respective bodies. (Opinions of Justices, 70 Maine Re- 
ports. 5S5.)" 

Said the Supreme Court of Georgia: 

"It needed no provision to protect the Legislature against the scrutiny of the 

•Courts on this subject. It must, in the nature of things, be in tlie power of a legislative 
body to declare, and declare conclusively, who compose it, and whether it is properly or- 
ganised and in session according to the constitution. Such questions enter into Its 
very existence, and must be decided before it proceeds to business ; and to make them 
the subject of review before the courts, is not only to make all legislation uncertain 
&nd iaconclnsive, but to exalt the courts to supreme power in the State. (Macon and Au- 

.gusta Railroad Co. vs. Little, 45 Georgia Reports, 402.)" 
In the same case that Court further said: 

"Does it follow that if it be admitted that the decision of such questions by the 
Legislature is conclusive upon the Courts, they will be decided wrong? Are not the 
members of that body under oath, and is it to be presumed that they will disregard 
that oath? Is the constitution less safe in their hands than in the liands of the ju- 
diciary? • * * * In every government, power must be trusted 
eomeu here. There must always, upon every matter, be a final arbiter from whom 

•there is no appeal, except to the people or to arms." 

Though the Constitution of New Hampshire, like that of Maine, permits ques- 
tions to be put to the Justices of the Supreme Court, the Justices refused to answer 
questions put by the House concerning the right of certain members to seat'^, on the 

5 round that the Court had no right to pass upon such questions. (Opinion of the 
ustices,5(j New Hampshire Reports, 577.) 

But why quote further from authorities? Is it not enough that, from the time 
•of James I, to this hour, in no instance has any Court but the Supreme Court of Kan- 
sas ever assumed to decide who were entitled to act as members of the legislature, 
•save only that, (" answering questions, the Supreme Court of Maine decided in favor or 
members really elected as against those holding certificates? The Supreme Court of 
Kansas cannot be interrogated : and, hence, even the Maine case is no precedent, and 
the Kansas Supreme Court stands absolutely isolated in its usurpation. 

But, even had Courts the power to enter upon such an inquiry, the Supreme 
•Court had no power to do so in the case before it ; for the question of membership 
was but coJkiifra^, and as to that question tho habeas corpus was a collateral proceed- 
ing. Suppose two persons claim to have been elected Register of Deeds, and one of 
cthem brings a proceeding to contest the right of the other to that office. Here, th* 



84 

actual right to the office would be the one matter in dispute, and the iudgment of th© 
Court would be upon that very matter. Each of the claimants would be a party, and 
would have the right to present his evidence and argue the law of his <^laim. Such a 
case is called a d*a;rt proceeding, and the Court inquires as to the Icijal right to the 
office. But suppose one of these claimants is actually in possess-ion of the office and 
exercising its functions, though the other is really the person legally elected. Smith 
sues Jones to settle the title to a tract of land; and Jones produces in evidence a 
deed made prior to the deed Smith liolds and from the same grUntor. Smith says, "I 
had no notice of your deed when I took mine ; I am an innocent purchaser, and your 
deed is not good as against me." Jones answers: "You did liave notice, for my deed 
had been regularly recorded before you purchased.'' Smith replies: "Your deed was 
not legally recorded; for the person who recorded it was not the legally elected Reg- 
ister of Deeds and had no right to the office. ' Here would be a lawsuit about the 
title to a tract of land, and the Court's judgment must be concerning that title. The 
only parties to the suit would be claimants of the land ; neither claimant of the office 
of Kegister of Deeds would liave the right to i)resent evidence nor to be heard in any 
way. Indeed, neither claimant of the office might even know such a suit was pend- 
ing, or that the right to the office was involved in the case. The question would not 
be the principal question in the cause, but would arise incidentally. Such a case is, 
as to the right to the office, called RCdllatrral proceeding. The person legally entitled 
to an office is called the officer (/(j«rr; the person actually in possession of an office 
and exercising its functions is called the officer (/f /((../(( — the officer //( fact. In a di- 
rect proceeding the Court requires the claimant to prove he is the officer de jure, and 
nothing short of that will do: but, in a coi/«(fm/ proceeding, the Court goes no fur- 
tlier than to inquire whether the officer is such dc fftcta. and cannot go into the ques- 
tion of lt(jul right to the office. Were it otherwise, any officer's title might be defeated 
by collusion or negligence In a case of which he had never so much as heard. 

Gunn sued out a writ of /(fi6frt.« <((/7^».<! on the ground that he was illegally re- 
strained of his liberty because Douglass, who had, as speaker of the House, ordered 
the petitioner arrested, was »of the speaker of the House. The question in the case 
was, "Is Cunn illegally restrained '?" The judgment of the Court could decide only 
that question. Whether Douglass was Speaker was to be decided in order to decide 
the main (juestion. Tlie alleged Sergeant-at Arms claimed that Douglass was Speaker: 
but Gunn 'answered ; "The body over which Douglass presides is not the House of 
Representatives; for another body is the House, and I)unsmore is the Speaker." The 
Sergeant-at-Arms replied: "The Douglass body is the House, for it contains $ixty- 
seven legal members, while but fifty-eight of the sixty-eight persons composing the 
Dunsmore body are ?f(/ai members." If this question was proper for inquiry and de- 
terlnination, the point for decision was whether ten persons in the Dunsmore House, 
or ten in the Douglass House, were legalhj entitled to seats in the Legislature; yet not 
a single one of those twenty persons was a party to the proceeding; not one of them 
could offer evidence in the case, not one could participate in the argument. Like the 
Register of Deeds with the case about title to land, these claimants were absolutely 
at the mercy of the immediate litigants— if the question of legal right to membership 
of the House was to be investigated and decided. As to them and their ri^ht to seats, 
the Gunn case was a collateral proceeding; and no Court has held more hrmly than 
the Supreme Court of Kansas hitherto that, in a collateral proceeding, title to an 
office cannot be tried, but an officer de facto is, in such a proceeding, to be deemed an 
officer de jure. This is the universal rule. No Court has held otlierwise till now. 

"It is asettled rule that, even where Courts have power to inquire into the right 
of an officer to perform official acts, they will not do so collaterally. They will freely 
Investigate the legality of any particular act. but they will never, in so doing, inquire 
Into the right of the officer to act, as such, at all. The rule is uniform, that the acts 
of an officer, otherwise legal, cannot be attacked on the ground of any illegality in 
his appointment, or on the ground that though he is an officer in fact, he is not so ac- 
cordingto law. Is not the General Assembly, actually in session, entitled from the 
Courts to at least the same measure of consideration they grant to a Constable or a 
Justice of the peace'? Will the Courts, in inquiring into the validity of the acts of 
even stich humble officers as these, refuse to declare them illegal because of a defect 
in the legal title of the officer to his position, and yet determine an act of the Legis- 
lature invalid because of a defect in its title to perform legislative functions? (The 
Macon and Augusta Railroad Co. vs. Little. 45 Georgia Reports, 407.)" 

If the Courts cannot in a collatercd proceeding inquire into the right of persons 
to seats in the Legislature, then Courts cannot inquire into that right at all; for the 
case of State vs. Tomlinson (20 Kansas Reports, 692.) was a direct proceeding— a qua 
warranto brought against the member himself for the sole purpose of testing his right 
to sit; and the case was dismissed because the Court, in an opinion already quoted, 
held that it had no jurisdiction over such a question. Has tlie Court power in a col- 
lateral proceeding to decide a question over which it can have no jurisdiction in any 
action involving that question directly and alone ? Were one person to bring a suit 
against another to settle, as between themselves, the light to a seat in the House, the 



85 

Court must dismiss the suit for Tant of authority to inquire into the right to a seat in 
the House. It has no power to consider </tc .svibject ma</e;-; for that is within the ex- 
clusive control of the House itself. Yet we are told that in a collateral proceeding the 
Court may inquire into this very matter! Surely this is Logic gone mad. A whole 
lunatic asylum, acting in conspiracy, could not evolve a worse soecimen of reasoniug 
than this. 

THE QUE.STIOX POLITICAL. 

There must be some other way of determining which body Is the House. There 
is one, and it is the one which has always been adopted save in this one solitary in- 
stance. That way is, to follow the decision already made by the political department 
of the Government. Though for some purposes a distinct body, the House is but one 
of the integral parts of a larger body— the Leiiislature. This larger body consists of 
the House, tile .Senate and the Governor. These three parts act together as a unit, 
precisely as the members of each House act collectively as one body. Each of the 
component parts is bound to find the other two and co-operate with them belV)re it 
can Itself exercise its own powers as a legislative body. The Senate and the Governor 
having found a certain organized body and co-operated with it as the House, may the 
Courts afterwards decide the body thus recognized is not the House? May the ju- 
diciary overrule the decision of the Legislative department as to that department's 
own membership ? If so, then it can never be known by the citizen whether tlie laws 
upon the statute books are really laws until the highest Court in the State shall have 
decided whether every part of the Legislature was legal! The Senate can neither 
send nor receive messages or bills until it sliall have decided which of two rival bodies 
is the House. The Governor cannot transmit his message nor approve a bill until he 
6hall have decided whether the supi>osed Senate and House are really such. The 
Senate and the Governor nwn-i decide whether a certain body is the House, and decide 
at the beginning of the legislative session. Until that decision sl.a'l have been made, 
there must be legi:^lative paralysis. Neither the Senate nor the Governor can seek 
the advice of the Courts before deciding. The Senate and the Governor, when acting 
within their respective spheres, are the constitutional peers of the judiciary, and their 
decisions cannot be reviewed and reversed by the Coui'ts. The question which of 
two rival bodies is the Legislature, is a poli.ticnL not a. judicial question, and the Courts 
must follow, without original inquiry, the decision of the political branch of the gov- 
ernment. This is settled law. 

Beginning with the case of Luther vs. Borden (7 Howard's U.S. Sup. Ct. Reports, 
1), growing out of the conflict between two rival State Governments inKhode Island, 
and known to history as "Dorr's Rebellion," the Supreme Court has st(5adly adhered 
to this doctrine. In that case, Mr. Justice Woodbury declared that such questions 
as, "Whether what are jiublished and acted on as the laws and Constitution of a State 
were made by persons duly chosen or not," are "too near all the great fundamental 
principles of government, and are too momentous ever to have been entrusted by our 
zealous fathers to a body of men like judges." In reconstruction days, the State 
of Georgia brought a suit in the Supreme Court of the United States to enjoin the 
Secretary of War, Edwin M. Stanton, from setting up a Government in that State un- 
der the act of Congress on the ground that the act was void: but the Court refused to 
even discuss the question whether the act was constitutional or not, holding that it 
was a political question which the court had no right to entertain. [Georgia vs, 
Stanton, 6 Wallace.] Who does not remember the recent attempt of the British Gov- 
ernment to have the Supreme Court of the United States decide the Behring sea con- 
troversy. The Court referred to its decision in Luther vs. Borden, and held the ques- 
tion political. [Behring Sea Case, 143 U. S., 503.] In a case involving the question of 
American rights in the Guano Islands, the same Court declared: "Who is the sover- 
eign, de jun or de facto, oi a, territory, is not a judicial but a political question, the 
determination of which by the legislative and executive departments of any Govern- 
ment conclusively binds the judges, as well as all other oflicers, citizens and subjects 
of that Government." [Jones vs. United States, 137 U. S., 'Ju2.] And in that opinion 
of the Supreme Court of Georgia to which Chief Justice Horton seems to have taken 
60 strong and so unaccountable a dislike, is imbedded this judicial gem: 

"To set up the judiciary as an arbiter of the legality of the legislature.a co-ordin- 
ate department of the government — to make it the oracle to which contending revol- 
utionists shall come for judgment as to which is right — is to enthrone it as the supreme 
power in the State, and to confer upon it a jurisdiction dangerous to its own existence, 
and never contemplated by the fundamental law. To decide when a law confoi'ms to 
the Constitution IS one thing; to decide who are the lawmakers is another. To do 
the one, the people have expressly granted to the Courts; to do the other, there is not 
only no grant, but the claim of such a riglit is a claim foreign to the judicial office, 
dangerous to the independence of the legislative and executive departments, and eon- 
tranj la the first principles of a Government oj tlie people. Necessarily, the Courts must 
decide what is the law — what is the legal will of the law-making power. But if they 
have the right to go behind this, and to inquire whether the lawmaking power is it- 



86 

■elf \ega,l,th€y beeome, in effect, the supreme poxuer in the State!" [The Macon and Augusta* 
Bailroad Co. vs. Little, 4o Georgia Reports, 4OG-407.] 

In order to escape from the brand of usurper this Georgia court fixes upon hlm^ 
Chief Justice Horton resorts to what in any man but a judge would be called a de- 
liberate falsehood. The reader shall judge whether my accusation be well founded. 
Here is the statement of the Chief Justice of Kansas, as taken from the opinion pub- 
lished in the Topeka Daily Capital: 

"It has been said that there are some views the other way, and a case from Penn- 
sylvania is cited, and a case f rrm Georgia is cited. In the Pennsylvania case, the ex- 
act question as to the division of the Legislature was not before the Court. If the- 
Court intended to say in that case that an injunction should not be granted against 
the Supreme Legislature, this Court would readily concur with it. If it intended to 
go further than that, this Court then calls the attention of Counsel to the fact that 
npon political questions, as they are denominated in Pennsylvania and Georgia, thia 
Court has heretofore differed from the Courts of tliese States. * * * 

There were no politics in that case. The Governor believed his duty was one way 
and this Court, after examining the matter, said that the rule laid down in Penn- 
sylvania and Georgia, and in several other States, was not the best rule, and was 
not the one which should be recognized by this Court. We referred directly to the 
Pennsylvania and Georgia decisions upon this question. * * * ♦ 

In the case of Marlin vs. Ingram, found in the 8cSth Kansas on page 641. all of these 
decisions are cited. They are all gone over; and in a most learned and able opin- 
ion by Mr. Justice Valentine, this whole question is examined, and so far as that 
particular question was concerned, was there settled. This Court differed from the 
Supreme Courts of the States of Pennsylvania and Georgia.,'" 

Waiving the naive remark about "political questions, as they are denominated 
in Pe^insylvania and Georgia," when the very cases lead to him in argument and thrust 
upon his notice in a printed brief of extracts, showed that such questions are "de- 
nominated political" by all courts, including the Supreme Court of the United 
States — let us examine this quotation from the Chief Justice's opinion with refer- 
erence to its truth or falsehood. Precisely what Georgia cases did he intend the 
public to suppose he meant by these remarks? Who, upon reading this statement 
does not understand it to mean that the Kansas Supreme Court, in quiet times, had 
examined the very Georgia cases we had just referred to in argument, and that their doc- 
trine had been overruled? Who does not understand it to mean that, in the case 



alluded to in the case of Martin vs. Ingram [SS Kansas Reports] either of the Georgia 
cases cited in the Gunn habeas corpus, or the doctrjne of which tliey treat. One Geor- 
gia case is mentioned there in Mr. Justice Valentine's opinion, and that was thirty- 
seven volumes earlier than the case from which I have quoted and which caused the 
Chief Justice so much trouble, and that one Georgia ease of ancient date had not the 
slightest relation to a political question. Mr. Justice Valentine's opinion lies before 
me as I write; and so far is it from being true that the Kansas Supreme Court "dif- 
fered from" the Supreme Court of Georgia, even in the case that was cited, that iNTr. 
Justice Valentine, at page (159, actually quotes a passage from Low vs. Lowns, Gover- 
nor. 8 Georgia, 372, to show that "no such question" as that under consideration then 
by the Supreme Court of Kansas, "was involved in the facts of" the Georgia case, and 
that the Georgia court was disposed to take the view the Kansas Supreme Court 
took of the same question. Precisely what was that Kansas case of which the Chief 
Justice makes so much? The Governor was. by statute, required to perform certain 
acts in the organization of new Counties; and in (irant County such proceedings had 
been taken that a temporary County seat was to be located, when the gravest frauds 
were discoveied to have been committed for bribes by the drunken Register of votes 
for county seat; and the suit was an injunction to prevent the Governor from declar- 
ing the town of Ulysses the temporary County seat. It was claimed that the duty 
cast by the Statute upon the Governor was not one to be performed as an executive act, 
but was wholly ministerial; and the question, not unfamiliar to lawyers, was whether 
the court had jurisdiction over the Goveinor as to such an act. The court reviewed 
the authorities, and hesitatingly held that, as to such acts, it had jurisdiction; but 
also held that the acts in question were not mini:^terial.and therefore decided in favor 
of the Governor and dissolved the temporary injunction wliich had been granted 
against him by a district judge 1 The precise point decided, as shown by the first syl- 
labus, was this : 

"Where purely ministerial dutiesare, by Statute, imposed upon the Governor, and 
such duties are only such as might be devolved upon any other officer or agent, the 
performance of such duties may be controlled by mandamus or injunction." (38 Kan- 
sas Reports, 641.) 

I leave the reader to judge whether there is any kinship possible between that 
ease and that in the Supreme' Court of Georgia from the able opinion in which I hav9 



87 

fluoted. But we are not yet through. We cited Kerr vs. Trego, decided by the Suprema 
■Court of Pennsylvania (47 Penn. St. Rep.), in which that Court stated that legislative 
todies were not suliject to the Courts, but were above the law.. The Chief Justice 
would have us believe that this decision also fell under judicial condemnation in the 
case against Govei'nor Martin. He " calls the attention of counsel to the fact that 
upon political questions, as they are denominated in Pennsylvania and Georgia, this 
Court has heretofore differed from the Courts of those States;" and he is indiscreet 
enough to be specific and refei us to the case against Governor Martin. Now, I repeat 
the offer here I made as to tlie Georgia cases. If the Chief Justice will find in the 
Governor Martin decision the remotest allusion to the Pennsylvania case of Kerr vs. 
Trego, or will explain how the decision in that case could have been in any manner 
pertinent to the case against Governor Martin, I will confess the decision recognizing 
the Douglass House to have been the wisest judicial deliverance since Solomon dis- 
posed of the disputed baby. The Chief Justice's trouble with the Pennsylvania case 
was that it is the solitary decision leferred to in that remarkable book, so much be- 
praised by the Chief Justice— "McCrary on Elec'ions" — in support of the suggestion 
made in that work as to the way to decide between rival legislative bodies; and the 
decision, when examined, is not with reference to the Legislature, but only concerns 
City Councils, while the Court expressly states that itg doctrine can not be applied to 
the Legislature of the State, because that body is beyond the reachof Courts— is above 
the law I This exposure of the sandy foundation of the Chief Justice's favorite text 
book gave rise to the necessity of wriggling out of Kerr vs. Trego. Chief Justice Hor- 
ton says that, in the case against Governor Martin, the Supreme Court of Kansas 
"referred directly to the Pennsylvania and Georgia decisions." If he did not mean 

Eeople should understand he meant " the Pennsylvania and Georgia decisions" cited 
y counsel in the Gunn liabeos corpus case, pray why did he mention " Pennsylvania 
and Georgia decisions" at all? If he did mean to be so understood, was his memory 
at fault? Impossible; for he had been reading the Martin case, and actually quoted 
from its decision In the opinion he was delivering. His statements were, therefore, 
either utterly irrelevant, or he meant to delude the people into believing an insinu- 
ated lie ; for neither the Pennsylvania nor the Georgia case cited in the Gunn case was 
even so much as mentioned— nor was the doctrine of either alluded to even remotely 
—in the case against Governor Martin I 

THE VERY FIRST OF ITS KIND. 

Never before In English nor in American judicial history has any Court, save the 
Republican District Court of Shawnee County, reversed the action of the Senate or the 
Governor in recognizing the House of Representatives. The question is not new; it 
has arisen before; but this is absolutely the first time that a Court has disregarded the 
decision of the political branch of the Government as to whicli of two rival bodies 
should be considered the House 1 The only precedent the Chief Justice could cite was 
the decision of the Supreme Judicial Court of Maine ; and concernijig that, we referred 
him to the note of Judge Cooley, in his work on "Constitutional Limitations:" 

"In Maine, where there were two conflicting bodies, each claiming the right to 
exercise the legislative power, the Judiciary asserted and enforced the right to decide 
between them. It is to be observed, however, that the Governor had already recoanized 
the same body in whose favor the Court decided, and had approved the act whose validity 
•came in question In the Court." 

The Chief Justice carefully refrained from alluding, in his opinion, to this obser- 
vation. Give him all he can get out of the Maine case, and it still remains true that'B 
Kansas Court has the indisputable honor of being the only Court which has ever as- 
sumed to destroy a branch of the Legislature recognized by the other branch or by the 
•Governor. 

THE USURPATION CONDEMNED. 

The bold claim is made in this opinion that the Courts are the sole authoritative 
Interpreters of the Constitution; that the Supreme Court's decisions upon constitu- 
tional questions must control the political department of the Government, even when 
acting within its exclusive sphere. What a remarkable contrast between this latter- 
<iay Republican Chief Justice and the first Republican President I Read this passage 
from Lincoln's first inaugural address: 

"I do not forget the position assumed by some, that constitutional questions are 
to be settled by the Supreme Court; nor do I deny that such decisions must be bind- 
ing in any case, upon the parties to a suit, as to the object of that suit, while they are 
also entitled to very liigh respect and consideration in all parallel cases, by all other 
departments of the Government. • • • * At the same time, the 

candid citizen must confess that if the policy of the Government upon vital questions 
affecting the whole people, is to be irrevocably fixed by decisions of the Supreme 
Court, the instant they are made In ordinary litigation between parties In personal 
actions, thepeople will have ceased to be their own rulers, liavino to that extent practically r»' 
iigned their Government into the hands of that eminent tribunal.' 



88 

THE CASE PREJUDGED. 

Having sbown the sophistry of the Chief Justice's opinion, and the manner in 
which unblushing mendacity was employed to bieak the force of pointed authorities 
standing athwart the Court's chosen path, let me now state some significant facts 
showing that this usurpation was premeditated and the case prejudged; whereupon I 
shall conclude this lengthy review. 

Armed men were in and around the Capitol. The tread of sentries disturbed the 
wonted stillness of tlie corridors. A tliousand armed Deputy Sheriffs were threatening 
Instant attack ; the National Guard had mutinied ; the Governor's life was menaced. 
The act of a burly negro, in smiting the face of a State officer's wife in front of his 
office, was but a sporadic indication of the arrogance apd the excitement which pre- 
vailed in the Capitol. In the midst of this excitement on the second fioo>- of the State 
House, Eugene Hagan, Esq., a "stand-up" Democrat, and an intimate friend and asso- 
ciate of the Santa Fe Railroad Company's attorneys, went into the basement where 
the Supreme Court Justices vegetate, and, without the knowledge of any one inter- 
ested in the Dunsmore House, obtained for Gunn a writ of habras corpus, which raised 
the single question whether the body presided over by Douglass was the House of 
Representatives. The proceeding had already been twice continued, when, on Thurs- 
day of that eventful week, I\Ir. Justice Allen insisted that the Attorney General should 
be notified, and the hearing was again postponed till Saturday morning at 10 o'clock. 
About noon Thursday we received our first information that such a proceeding had 
been brought or that such a question had been raised in that Court. The Republicans 
were managing both sides of the case, beyond a doubt; and the Chief Justice, as I shall 
shovY, was a party to the collusive scheme. It was at first agreed that the Attorney 
General should move a dismissal of the proceedings, on the ground that they were a 
mere sham ; but as Mr. Hagan proposed that we should act with him, and as the ques- 
tion was bound to be raised in some manner in any event, the motion to dismiss was 
abandoned, the Governor appointed Judge Doster and myself to appear with the At- 
torney General, and we appeared with Mr. Hagan Saturday morning. The Court then 
set the case for hearing Tuesday morning, at which time the hearing began. Now, 
while this proceeding was jjending. Chief Justice Horton's stenographer was in the 
Chief Justice's room and elsewhere, wearing the red badge of a Republican House 
Deputy Sergeant-at-Arms, and was still wearing it the very morning we first appeared 
in the case. While we were waiting for the Justices to come in, this stenographer 
emerged from the Chief Justice's room and came into the court room to get a drink of 
water. I looked inquiringly at his red badge, and when next I saw him it had disap- 
peared. Is it likely his stenographer would have been wearing that badge had not the 
Chief Justice alreadj^ decided the Douglass House valid? But this is not all. I went 
to the State Library to examine some books, especially the Maine decisions, bearing 
upon the questions in the Gunn case, but discovered the Chief Justice had had them 
for some time. He had had them at his house /o;- rise in a cousultatinn with somebody. 
He had them then jn his room at the Capitol, and the Librarian got me the iemporanj 
use of them— they were to be immediately returned to the Chief Justice. Judge Dos- 
ter and I were embarrasedin our preparation for trial by tlie annoying circumstance 
that a number of other books bearing upon the case were missing from the library; 
and we liad been blaming the counsel on the other side with the cause of our 
troubles, but we discovered that we were accusing them erroneously— that the books 
were not in their possession. Where vvere the books? In Judge Horton's room? There 
is, in short, not the slightest reason to doubt that before we had discovered the exist- 
ence of the jiroceedings. Judge Horton had been preparing to render a decision in the 
case sustaining the Douglass House ; and, in all probability, the proceedings had been 
adjoitrned in order to give him more time to prepare to announce his decision. Mr. 
Justice Allen's requirement that the Attorney General should be notified doubtless 
interfered some what with theChief Justice's programme ;but,if Mr. Justice Allen should 
see what I have here written, he will discover why no longer time was consumed by his 
associate In considering before deciding : they had decided the case before the liearing—hncl 
been briefing up as industriously as the other lawyers in the case. I have not the 
slightest doubt that it was the deliberate intention to have that case heard and de- 
cided before we should be permitted to know that such a proceeding had been brouglit; 
and that a public argument of our side of the controversy was to be avoided as unde- 
sirable. Not even the newspapers mentioned the case. I have been twenty-two years 
a member of the Supreme Court bar; I get my living to-day by practicing law; and 
such a charge as this against two members of the highest Court in the State can do 
me little good in a professional way. Besides, one of the Judges, at least, is a gentle- 
man I very much like, and perhaps the liking is mutual. Let no reader suppose, there- 
for that this accusation of prejudgment is lightly made. From what I have said, I 
think the reader can see that the Cliief Justice at least had been actually at work m 
the case before the Attorney General and his associates had been told of its existence 
and that a decision sustaining the Douglass House had been premeditated and deter- 
mined upon; that before a word of argument had been uttered, the decision after- 



I-.ofC. 



89 

■wards rendered by the Chief Justice had become already "a foregone conclusion " 
Our arguments had as well been made to a statue; our authorities were read to ears 
deafened by prejudgment; we were heard for appearance sake alone— not by an un- 
biased mind, honestly desirous of information. If, therefore, the Court was guilty of 
usurpation, it was a premeditated usurpation. 

THE MOTIVE. 

This decision destroyed the prosecutor— the Dunsmore House— whence alone ar- 
ticles of impeachment against these Judges might nossibly emanate. It destroyed all 
the legislation feared by corporations and alien mortgagees, and prevented all Greed 
had so far dreaded. It was without precedent. It was an usurpation— a couf) d'ctnt by 
the Santa Fe Railroad Company as audacious as that by Napoleon " the Little." 
Through this decision ran the brutal consciousness of the cowarcf bully : "We are two 
to one, and can do as we choose." Am I not justified in concluding this review with 
the assertion that Chief Justice Horton's opinion is a woof of brutal sophistry, de- 
liberately woven by a partisan Judge to conceal from the eyes of the people a premedi- 
tated act of audacious usurpation? That its motive was to prevent the supremacy of 
the people over the Aristocracy of Greed? That this usurpation was deemed necessary 
in order to save alien owners of railroads and alien mortgagees from the justice they 
feared at the hands of the Government by their victims? The coup d'etat was success- 
ful. It left the PriesvS of Mammon free for two more years to make sacrifice of human 
happiness and of human lives— to blot the joyful sunlight of childhood from the 
world of the children of the poor— to crush the rising hope in the bosom of toiling 
misery. It made two men— a majority of the Supreme Court— as absolute over the 
people of Kansas as any Eastern monarch has ever been over a nation of Orient 
slaves. Beneath these two men are all the people and all the departments of Gov- 
ernment, while above these two men there is no power this side of God himself! Our 
fathers beheaded Charles I. for attempting to be supreme over the people— to acknowl- 
edge no control by parliament. France served Louis XVI. a similar turn. George III. 
was informed at Bunker Hill that American freedmen could not be made slaves, and 
Yorktown established the truth of the information. It is an old Saxon prejudice that 
Legislatures, coming fresh from the people, not judges standing by force of traditional 
environments in the way of reforms, shall be supreme in the State. See what some 
patriot Judges have said in cases like this : 

"To whatever extent this Court might err in denying the rightful authority of 
the law-making department, we should chain that authority, for a long period, at our 
feet. It is better and safer, therefore, that the judiciary, if err it mu-t, should not err 
in that direction. If either department must overstep the limits of its constitutional 
power, it should be that whose official life will soonest end. It has the least motive to 
usurp power not given, and the people can sooner relieve themselves of its mistakes." 
(Supreme Court of Indiana, in Brown vs. Buzaw, 24 Ind., 194, and Robertson vs. State, 
109Ind., 127.) 

"If a mistake, or even an intentional wrong, should be committed by the Execu- 
tive, the remedies under our form of government are ample and prompt— the wrong 
to be suffered temporary. If. on the other hand, the precedent of interference by one 
department with the discharge of its duties by another, should be established by the 
form of a judicial decision, a dangerous blow would, in our judgment, be struck at one 
of the most vital principles of our system of government, the consequences of which 
no one could fortell, but which no intelligent and candid citizen could fail to see must 
be lasting and pernicious." (Justices of the Supreme Court of New Hampshire, 56 
N. H.,577.) 

CONCLUSION. 

Now, my reader, I have been called hard names because some six years ago I be- 
gan to cry aloud to the people who still were sleeping the sleep of political and so- 
cial death ; because, before it had come, I raised my feeble voice to warn men of what 
has at last come to pass. Judge ye whether I spake treason when I clamored that the 
people might be free. Turn back to the quotations I have given in this review, and see 
whence they were gathered. Are they the"wild-eyed"utterances of red-handed revol- 
utionists? Is not every one of them from a source respected hitherto even by Pluto- 
cracy itself? Is this review the insane drivel of some poor wretch maddened by un- 
slaked thirst for official snoils? Not even my bitterest calumniator has whispered 
any motive for my struggles, but that of sincere desire to desaroy the existing 
social hell, that there may come to this beautiful world asocial heaven ; and to 
the intensest zeal for that consummation I delight to plead guilty. But you— what 
do YOU mean to do? Two men are supreme over you. Are judges more desirable as 
tyrants than are other men? You have a dual absolute King in Kansas. Two men are 
to rule you, being themselves subject to no rule. Remember what that stern old 
champion of freedom, John Milton, wrote when Charles Stuart claimed the power 
these two judges have usurped: "He that bids a man reign over him above law, may 
bid as well a savage beast." 

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The Grades of this School are accepted by the 
State Board ol Education lor the State Certliie=>ta 
and Life Diploma. 

The Expenses are the Lowest possible for Fi 
Class Work and good accommodations. Catalo 
containing courses of study and full informal 
sent free. 

State where you saw the advertisement and 
celve a picture ol the faculty 

Address: L, O. THOROMAN. Pre; 
Salina, Kans 

ARE CHEAPER NOW than they ever will be again. Buy a fi 
cheap and on kast terms and low interest of the 

UNOS in everj counlj in Kansas, IN AMEeiCAN LANO & iMMIGRATiOi COMP 

Over 2,000 farms at a vert low puice. It will pay you to Tj^ 1^ IVT ^mT /V C 

write now for list with full description and number of land. JLX. XjL A ^ %^ XlT^ 

J. H. BKADY, Greneral Manager, Topeka, Kaiis£ 

The Kansas City Stock Yards 

Are the most commodious and best appointed in the Missouri valley. The fact that higher prices 
are realized here than in the east Is dae to the locution at these yards of eight packing houses, with 
an aggregate dally capacity of 3,600 cattle and 37,200 hogs, and the regular attendance of sharp, com- 
petitive buyers for the packing houses of Omaha, Chica.;o, St Louis, Indianapolis, Cincinnati, New 
York and Boston. The eighteen railroads running Into Kansas City have direct connections with 
the yards. 




FARMS 



Official receipts for 1891 • • - 

.'Slaughtered in Kansas City 

Sold to feeders 

Sold to shippers 

'1 otal Sold in Kansas City in 1891 



Cattle and 
Calves. 



1,347,487 

r)70.7til 

237,5t>0 

355,625 

1,163,946 



Hogs. 


Sheep. 


Horses 
and Mules. 


2,599,109 

1,995,652 

17,672 

585,330 

2,598,654 


386,760 

209,641 
17,485 
42,781 

269,844 


31,740 



Cars. 



91,456 



C.F.MORSE. E.E.RICHARDSON, H. P. CHILD, 

General Manager, Secretary and Treasurer. Asst. Gen. Mgr. 



E. RUST. 

Superintendent. 



^ 



GRASS AND FIELD 

SEEDS OF ALL KINDS. 
J. G. PEPPAl^O, 

1400-1402 Union Ave., Kansas City, Mo. 




